[HISTORY: Adopted by the Town Board of the Town of Somers 5-14-2015 by L.L. No. 1-2015. Amendments noted where applicable.]
The Town Board of the Town of Somers hereby determines that
it is necessary for the health, safety, appearance and general welfare
of the residents of the Town of Somers to provide a method whereby
improved properties and public lands within the Town are clean, properly
maintained and free from vermin, nuisances, hazards, debris and litter.
The Town Board acknowledges the existence of the Property Maintenance
Code of New York State (2010) as amended and that its administration
and enforcement is the responsibility of the Building Inspector. The
provisions of said Code are incorporated herein and made a part hereof.
A.
Any owner, tenant, or occupant of any property responsible for the creation of an offense in violation of this chapter located within the Town of Somers shall remove such offense when ordered to do so by the Building Inspector within 30 days of the service of written notice of violation as provided in Subsection C below.
B.
Any person responsible for the creation of an offense in violation of this chapter affecting a public street or other public property within the Town of Somers shall remove such offense when ordered to do so by the Building Inspector or his representative within 30 days of the service of written notice of violation as provided in Subsection C below.
C.
All written notices of violation under this section shall be served
on the owner, tenant, or occupant responsible for the creation of
such offense on any property located within the Town of Somers by
posting a copy of such violation notice upon the front portion of
the property or upon the main structure and by mailing a copy of such
notice by certified mail/return receipt requested, to the owner of
the property as shown on the latest assessment rolls of the Town.
In the case of any person responsible for the creation of an offense
existing upon a public street or public property, notice may be personally
served on such person or mailed by ordinary mail to such person at
such person's last known address.
D.
The Building Inspector shall be responsible to direct the proper securing of dumpsters, containers or enclosures upon all properties, and such officer shall provide written notice of violation to the owner, tenant, occupant or other party as provided in Subsection C, which shall require the removal within 30 days of any vermin, nuisance, hazard, debris or litter not properly secured within a dumpster, container or enclosure.
E.
In the event that a notice of violation issued to an owner, tenant,
or occupant on any property located within the Town of Somers is not
remedied to the satisfaction of the Building Inspector within the
time provided for in the notice of violation, a summons shall issue
returnable in Justice Court of the Town of Somers.
A.
Any person found guilty of a violation of any provision of this chapter
shall be punished by a fine of not less than $250 to a maximum of
$500. Any person found guilty of a second offense of any provision
of this chapter within 18 months of the date of the first conviction
shall be punished by a fine of not less than $500 and not more than
$1,000. Any person found guilty of a third offense of any provision
of this chapter within 18 months of the date of the second conviction
shall be punished by a fine of not less than $2,500 and not more than
$5,000. Any person found guilty of a fourth or subsequent offense
of any provision of this chapter within 18 months of the date of the
third conviction shall be punished by a fine of not less than $5,000
and not more than $7,500.
B.
The continuation of an offense against the provisions of this chapter
shall constitute, for each week the offense is continued after issuance
of the notice of violation, a separate and distinct offense hereunder.
A.
Upon the failure of an owner, tenant or occupant, responsible for
the creation of such offense to comply with a notice to correct a
condition as cited within the days allotted, the Town Board may hold
a public hearing. The public hearing shall be held upon notice posted
conspicuously on the affected property and forwarded to the last known
address of the property owner, as it appears on the current tax records
of the Town, by certified mail, return receipt requested. Posting
and service of such notice shall not be less than 10 days prior to
the date of such hearing.
B.
The Town Board, after a public hearing as provided in Subsection A, may cause any vermin, nuisance, hazard, debris or litter as defined in this chapter to be removed from any property within the Town of Somers upon the failure of such owner, tenant or occupant to comply with any order of the Town Board. Said removal shall be performed by a private contractor hired by the Town. The Town Board shall ascertain the cost of the proceeding and the costs of removal, and such costs shall be charged and assessed against the owner of the property. The expense so assessed shall constitute a lien and charge on the real property on which it is levied until paid or otherwise satisfied or discharged and shall be collected in the same manner and at the same time as other Town charges.
C.
The removal of any vermin, nuisance, hazard, debris or litter by
the Town of Somers or its agents shall not operate to excuse such
owner, tenant or occupant from properly maintaining any premises as
required by this chapter, and such owner, tenant or occupant shall,
notwithstanding such action, be subject to any other penalties for
herein.
A.
Upon failure to respond and comply with the requirements of the notices described in § 135-2C within 30 days from posting and mailing, the Building Inspector will perform an inspection of the premises and submit a detailed report to the Town Board describing the level of vermin, nuisance, hazard, debris or litter as defined herein. The Official will further investigate and detail the circumstances of the abandonment of the premises, as well as perform due diligence regarding the current status of the property. The report will also contain the scope of the work required to remove any vermin, nuisance, hazard, debris or litter affecting the health, safety and welfare of the neighboring properties, residents and the public at large.
B.
Upon receipt and review of the report, the Town Board may, by resolution,
authorize the necessary work to be done and pay the cost thereof out
of general Town funds appropriated by the Town Board for such purpose.
C.
The Town shall seek reimbursement for the cost of the work performed
or the services rendered through any means permitted by law and/or
by assessment against the owner of the property. The expense so assessed
shall constitute lien and charge on the real property on which it
is levied until paid or otherwise satisfied or discharged and shall
be collected in the same manner as other Town charges in the manner
provided for the assessment of the cost of public improvements pursuant
to Article 4, § 64, 5-a, of the Town Law of the State of
New York (general powers of town boards, removal of fire and health
hazards and weeds), as amended.
If any section of this chapter shall be held unconstitutional,
invalid or ineffective, in whole or in part, such determination shall
not be deemed to affect, impair, or invalidate the remainder of this
chapter.
This chapter shall be effective immediately upon filing of same
with the Secretary of State of the State of New York.
[Added 5-9-2019 by L.L. No. 2-2019[1]]
The Town Board of the Town of Somers finds that:
A.
The planting and/or the growing of certain varieties of bamboo, a
plant not indigenous to the Town of Somers, presents the potential
for adverse impacts to the natural environment, including indigenous
flora, may significantly increase the cost of maintenance in public
and private rights-of-way, impedes the use of, and is destructive
to, structures and other improvements, and aggressively spreads across
property lines where it is likely to adversely affect the reasonable
enjoyment of adjoining and neighboring properties; and
B.
Because of these effects the planting and the growing of bamboo threatens
the value and physical integrity of both public and private property
in the Town; and
C.
In order to protect and preserve said environment and values, the
Town declares it necessary to regulate or prohibit the planting and/or
growing of bamboo within the Town.
The purpose of this article is to preserve and protect private
and public property from the damaging spread of certain running bamboo
grasses, protect indigenous plant materials from the invasive spread
of running bamboo and maintain the general welfare of the residents
of the Town of Somers.
A.
Usage. The singular number as used herein shall be read as the plural
number, and vice versa, and the masculine gender shall be read as
the feminine or neuter gender, and vice versa, whenever necessary
to give full effect to the terms and provisions hereof.
B.
BAMBOO
(1)
(2)
BAMBOO OWNER
(1)
(2)
(3)
LIMITING DISTANCE
(1)
(2)
(3)
(4)
As used in this chapter, the following terms shall have the meanings
indicated:
A perennial grass with a rhizomatous growth habit in the
family Poaceae, subfamily ambusoideae, tribe Bambuseae or Arundinarieae,
including, without limitation:
BAMBOO, CLUMPINGAny tropical or temperate sympodial (pachymorph) grasses which typically send off rhizomes (roots) near the base of the plant, including, but not limited to, Bambusa, Chusquea, Dendrocalamus, Drepanostachyum, Fargesia, Himalayacalamus, Otatea, Thamnocalamus, Thyrostachys and Yushania.
BAMBOO, RUNNINGAny tropical or temperate monopodial (leptomorph) grass with a rhizome (root) system which typically extends far away from the plant, including, but not limited to, the following plant genera: Arrow bamboo, Arundinaria, Bambusa, Chimonobambusa, Common bamboo, Golden bamboo, Phyllostachys, Pleioblastus, Pseudosasa, Sasa, Sasaella, and Semiarundinaria.
Any property owner or resident who has planted and/or grows
bamboo, or who maintains bamboo on his property, or who permits bamboo
to grow or remain on his property even if the bamboo has spread from
an adjoining property. Any property owner or resident at those properties
where bamboo is found will be considered a bamboo owner, except any
property owner or occupant who:
Did not plant or grow or cause bamboo to be planted or grown
on his property; and
Has provided satisfactory proof to the Town that, within a reasonable
period of time after discovering the encroachment of bamboo onto the
property from an adjoining or neighboring property, he advised the
owner of such property of an objection to the encroachment of the
bamboo; and
Has initiated steps against the owner or occupant of the adjoining or neighboring property for the removal of the bamboo from the property, including, without limitation, remedies at law or in equity, or both, or has initiated steps to effectively confine the bamboo in accordance with § 135-14 below.
Ten feet from any property line or within:
The right-of-way of any public or private road, including any
Town, county, state or federal road or highway, whether established
by dedication, use or easement, explicit or implied (collectively,
a "road");
Twenty-five feet of the edge of pavement or traveled way of
any road;
Twenty feet of any stormwater facilities within, adjacent to
or serving any road or public or private improvements; or
Twenty-five feet of any utility lines, poles, transformers,
or other fixtures or appurtenances thereto.
In the event the bamboo is found to have encroached upon, spread
to, invaded or intruded upon any other property or right-of-way, said
species shall be presumed to be classified as "running bamboo." This
presumption shall be rebuttable.
For the purposes of this chapter, bamboo found growing upon
a property shall constitute presumptive evidence that the bamboo was
planted and/or grown by and/or with the consent of the owner or occupant
of such property.
Upon and after the effective date of this chapter, the planting
of running bamboo shall be prohibited within the Town. Any person
who thereafter plants or causes to be planted running bamboo within
the Town shall be deemed to be in violation of this chapter and shall
be subject to such penalties as are set forth herein.
Without limitation of the provisions of § 135-13 above, in the event any species of bamboo is located upon any property within the Town, the bamboo owner or occupant of said property shall, in accordance with the requirements of § 135-15 below, confine such species to prevent the encroachment, spread, invasion or intrusion of same within any limiting distance as defined herein.
A.
Any bamboo that has been planted or otherwise permitted to grow on
any property within the Town prior to the effective date of this chapter
may remain on such property subject to compliance with this section;
B.
Running bamboo shall not be maintained or otherwise be permitted
to exist within any limiting distance;
C.
Any bamboo owner whose property contained running bamboo prior to
the effective date of this chapter shall remove and abate the growth
of the running bamboo within any limiting distance;
D.
Any bamboo owner shall be responsible to ensure that any bamboo,
other than running bamboo, planted or growing on his property prior
to the effective date of this chapter does not encroach or grow within
any limiting distance;
E.
Any bamboo owner shall be required to take such measures as are reasonably
expected to prevent bamboo planted or growing on his property from
invading or growing onto adjoining or neighboring properties or within
any limiting distance. Such measures shall include, but not be limited
to, installation of sheathing impenetrable by bamboo at a sufficient
depth to prevent the spread of rhizomes for the purpose of preventing
the growth or encroachment upon adjoining or neighboring property
by the bamboo. Sheathing must be installed at a minimum depth of not
less than three feet; and
F.
The Town Board of the Town of Somers may from time to time prescribe
such rules and regulations as may be necessary to give effect to this
section.
A.
Notice. In the event that bamboo growing on a bamboo owner's
property invades or grows on property that is owned or held by or
on behalf of the Town, or grows within any limiting distance, the
Town Board, Code Enforcement Officer or its or his designee on behalf
of the Town shall notify the bamboo owner, in writing, of the violation
of this chapter and that the bamboo owner is responsible, at his sole
cost and expense, for the removal of such bamboo from the Town property
or from within any limiting distance within 30 days from the delivery
of such notice and for all other costs and expenses related thereto.
Such notice shall include specific reference to this chapter and shall
provide that the bamboo owner is responsible for restoration of all
areas of the Town property or other property disturbed in such removal
to substantially the same condition as existed prior to such removal;
that the bamboo owner shall be responsible to indemnify and save the
Town free and harmless from any cost, expense, causes of action, liability
and damages, including reasonable attorney fees and disbursements,
incurred in connection with or related directly or indirectly to such
removal; and that in the event that the removal work involves entry
onto private property, the consent of the owner of that property is
required prior to any entry upon or work on such other property. Such
thirty-day period may be extended for good cause shown, as long as
it can be demonstrated that remedial measures have been started and
diligently pursued and the delay is not under the control of or due
to the actions or inaction of the bamboo owner or other person to
whom the notice has been issued. The bamboo owner shall be liable
and responsible to the Town for all costs incurred by the Town in
enforcing the provisions of this chapter. Such costs may be assessed
against the property of the bamboo owner.
B.
Service of the notice. The notice shall be served either personally
in accordance with the CPLR or by registered or certified mail, return
receipt requested, and addressed to the property owner at the last
address shown on the most current assessment roll or property tax
bill, or to the owner's agent at the last known address, or to
the occupant of the property or person having a vested or contingent
interest in the property as shown on the most current assessment roll
and/or property tax bill. A copy of the notice shall also be posted
at and mailed to the bamboo owner's property. Service of the
notice shall be effective upon delivery.
C.
Action upon noncompliance. Upon the failure, neglect or refusal of
a bamboo owner or his agent, or any other person or business entity
occupying the premises, to remove, remedy or abate the bamboo violation
within the specified period of time, or if the mailing is returned
by the post office because of the inability to make delivery for any
reason, as long as the notice was properly addressed, the Code Enforcement
Officer or his designee may take enforcement action as authorized
by the Town Code and as may otherwise be authorized by applicable
law.
D.
Any person or business entity who or which resists, obstructs or
impedes the agents, contractors, servants, officers and/or employees
of the Town in any enforcement action hereunder shall be in violation
of this chapter and shall be subject to the fines and penalties provided
herein.
E.
Liability for the costs of removal and/or abatement. The bamboo owner
or his agent, and/or the occupant of the property deemed to be in
violation of this chapter, shall be liable for the direct and indirect
costs of abating the violation and any nuisance created thereby and
all expenses incidental thereto, including but not limited to an administrative
fee equal to 25% of the total cost of said removal, remediation and/or
disposal process. Said administrative fee is intended to reimburse
the Town for the monies and time expended by its agents, contractors,
servants, officers and/or employees and attorney(s) in enforcing the
provisions of this chapter and abating any nuisance created thereby
and collecting the sums due, including but not limited to notifying
the appropriate party, certifying the amounts due to the Town, and/or
charging same against the property. The costs incurred by the Town
as set forth herein shall be certified by the Town Supervisor, who
shall mail written notice of such costs by certified or registered
mail, return receipt requested, to the owner of the premises at the
last address shown on the most current assessment role on file in
the assessment and property tax records, or to the owner's agent
at the last known address, and/or to the occupant of the property
at the location of the property. Said notice shall further state that
the failure of the bamboo owner, his agent, and/or the occupant to
pay such sums within 10 days of receipt of such written notice by
cash, bank check, or money order shall be sufficient cause to add
the amount due to the property tax bill without further notice.
F.
Recovery of costs and tax lien. In the event the property owner,
his agent and/or the occupier of the land fails, refuses and/or neglects
to pay the monies due and owing to the Town within said ten-day period,
or if the mailing is returned by the post office because of the inability
to make delivery for any reason, as long as the notice was properly
addressed, such certification of costs shall be provided to the Town
Clerk, who shall forthwith deliver a copy of same to the Town Assessor,
who shall cause the costs as shown thereon to be charged against such
lands and shall be added to and become part of the taxes next to be
assessed and levied upon such lands, the same to bear interest at
the same rate as taxes, and shall be collected and enforced by the
same officers and in the same manner as taxes.
Any running bamboo either planted or caused to be planted or
existing on a property prior to the effective date of this chapter
may not be replanted or replaced in kind once such running bamboo
is or has become, for any reason, dead, destroyed, uprooted or otherwise
removed.
In addition to any penalties heretofore mentioned, any person,
firm or corporation violating any of the provisions of this chapter
shall be guilty of a violation which shall be punishable by a fine
of not less than $250 nor more than $350 for a conviction of the first
offense; for conviction of a second offense, both of which were committed
within a period of five years, punishable by a fine of not less than
$350 nor more than $700 or imprisonment for a period not to exceed
six months, or both; and upon conviction for a third or subsequent
offense, all of which were committed within a period of five years,
punishable by a fine not less than $700 nor more than $1,000 or imprisonment
for a period not to exceed six months, or both. For the purpose of
conferring jurisdiction upon courts and judicial officers generally,
violations of this chapter or any part thereof shall be deemed a misdemeanor.
Where a notice of violation has been duly issued, each additional
week shall constitute a separate additional violation.
If any section, subsection, clause, phrase or other portion
of this article is, for any reason, declared invalid, in whole or
in part, by any court, agency, commission, legislative body or other
authority of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent portion. Such declaration shall
not affect the validity of the remaining portions hereof, which other
portions shall continue in full force and effect.
This article shall be effective immediately upon filing of same
with the Secretary of State of the State of New York.
