[HISTORY: Adopted by the Board of Trustees
of the Village of Delhi 9-18-2017 by L.L. No. 4-2017.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law also superseded former Ch. 199,
Nuisances, adopted 2-23-2009 by L.L. No. 2-2009, as amended.
This chapter shall be known and cited as the "Village of Delhi
Public Nuisance Abatement Law."
As used in this chapter, the following terms shall have the
meanings indicated:
A public nuisance shall be deemed to exist whenever, through
violations of any of the following provisions resulting from separate
incidents occurring at or predicated on events, circumstances or activities
occurring at a building, structure or real property, 12 or more points
are accumulated within a period of six months, or 18 or more points
are accumulated within a period of 12 months, in accordance with the
nuisance point system.
A nuisance point system shall be established by resolution of
the Board of Trustees of this Village. Such nuisance point system
may thereafter he amended from time to time by like resolution. The
nuisance point system shall be made available on the Village website
as well as upon request at the Village Hall. The points set forth
in such nuisance point system or amended nuisance point system shall
be assigned based on the violations including but not limited to the
following:
Article 265 of the Penal Law: firearms and other dangerous weapons.
Article 220 of the Penal Law: controlled substances offenses.
Article 221 of the Penal Law: offenses involving marijuana.
Article 225 of the Penal Law: gambling offenses.
Article 230 of the Penal Law: prostitution offenses.
Article 235 of the Penal Law: offenses involving obscenity and
disseminating indecent material.
Section 123 of the Alcoholic Beverage Control Law.
Sections 240.45 and 240.46 of the Penal Law: criminal nuisance.
Sections 240.35 and 240.36 of the Penal Law: loitering.
Article 120 of the Penal Law: assault and related offenses.
Section 240.20 of the Penal Law: disorderly conduct.
Sections 240.25, 240.26, 240.30 and 240.31 of the Penal Law:
harassment offenses.
Sections 165.40, 165.45, 165.50, 165.52, 165.54 of the Penal
Law: criminal possession of stolen property.
Section 260.10 of the Penal Law: endangering, the welfare of
a child.
Sections 260.20 and 260.21 of the Penal Law: unlawfully dealing
with a child.
Article 263 of the Penal Law: sexual performance by a child.
Article 178 of the Penal Law: criminal diversion of prescription
medications and prescriptions.
Code of the Village of Delhi, Chapter 175, Littering.
Code of the Village of Delhi, Chapter 235, Sewers.
Article 26 of the Agriculture and Markets Law: cruelty to animals.
Section 415-a of the Vehicle and Traffic Law: vehicle dismantlers.
Code of the Village of Delhi, Chapter 300, Zoning.
Code of the Village of Delhi, Chapter 218, Property Maintenance.
Code of the Village of Delhi, Chapter 192, Noise.
Code of the Village of Delhi, Chapter 106, Animals.
Code of the Village of Delhi, Chapter 102, Alcoholic Beverages.
Section 65-c of the Alcoholic Beverage Control Law: unlawful
possession of an alcoholic beverage by person under the age of 21.
Sections 170.65 and 170.70 of the Penal Law: forgery of or illegal
possession of a vehicle identification number.
Any building, structure or real property wherein there exists
or has occurred any other violation of the Code of the Village of
Delhi, including the 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 Delhi by reference.
Any building, structure or real property wherein there have
been, within 24 months, three or more convictions, in any court of
competent jurisdiction, of an owner, lessee, occupant, guest or business
invitee, for any single provision or any combination of provisions
set forth in this chapter.
Code of the Village of Delhi, Chapter 200, Nuisance Parties.
A.
The Village Board may exercise its discretion not to assign points for violations in accordance with § 199-2 if the owner and/or any other person directly or indirectly in control of the premises where the violation occurred has been proactive in working with the Village on corrective measures to abate the nuisance.
B.
The Village Board may exercise its discretion not to assign points for violations in accordance with § 199-2 when a violation occurs due to an owner, tenant, occupier or any other person directly or indirectly in control of the premises reporting or petitioning law enforcement for such violation, or when such person is a victim of a violation under § 199-2.
Each time points are assessed as designated in this chapter,
written notice shall be sent by certified mail, return receipt requested,
from the Village Attorney to the owner and/or any other person directly
or indirectly in control of the premises. Such notice shall detail
the violations which have occurred, the points assessed for such violations,
the current points total for the premises and the provisions of the
Village Code under which the owner and/or any other person directly
or indirectly in control of the premises may be subject to legal action
for the existence of a public nuisance.
Where a public nuisance is deemed to exist at any building, structure or real property within the Village of Delhi, the Village Attorney shall, at the direction of the Mayor or Board of Trustees by resolution, initiate administrative proceedings as set forth in § 199-6.
Notice and opportunity for a hearing shall be given to the owner
and/or any other person directly or indirectly in control of a building,
structure or real property at which it is alleged a public nuisance
exists. Such notice shall be served in the manner required by Article
3 of the New York State Civil Practice Law and Rules, provided that
any service other than delivery to the person to be served shall be
complete immediately upon delivery, mailing or posting without the
necessity of filing proof of service with the clerk of the court.
A.
Notice. The notice given shall:
(1)
Detail the violations which have occurred, the points assessed for
such violations and the accumulation of points resulting in the allegation
of a public nuisance;
(2)
State the remedial measures required to abate the public nuisance,
along with a specified time frame within which such measures are to
be taken;
(3)
Inform the person to whom it is directed of his or her right to apply
to the Village Attorney, in writing, within 14 days of service of
the notice for a hearing to challenge the allegations set forth in
the notice and the remedial measures required to be taken; and
(4)
Inform the person to whom it is directed that upon a failure to take
the remedial measures required to abate the public nuisance within
the time frame specified or upon noncompliance with any agreement
or findings reached at the hearing, the Village may bring a civil
action and/or any of the enforcement actions as provided by this chapter.
B.
Request for a hearing. The Village shall give notice of the time,
date and place of such a hearing to the person who requested it. If
no hearing is requested within the specified time frame, the notice
is deemed unchallenged and the person to whom it is directed must
comply with the remedial measures required to abate the public nuisance
within the time frame specified or face a civil action and/or any
of the enforcement actions as provided by this chapter.
C.
Hearing panel. If a hearing is requested. a hearing panel shall be
formed, consisting of an individual to be appointed by the chief Code
Enforcement Officer. an individual to be appointed by the Chief of
Police and an individual 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.
Evidence of public nuisance. A conviction for an offense delineated
in the definition of "public nuisance" in a court of competent jurisdiction
shall not be required to establish that a specified violation of law
has occurred at a building. structure or real property. Instead, the
Village shall be required to prove a specified violation by a preponderance
of the evidence. However, a conviction as deemed and applied in accordance
with the provisions of § 1.20 of the Criminal Procedure
Law, in any court of competent jurisdiction, shall constitute conclusive
proof of such a violation of law. Conviction of an attempt to commit
a violation of any of the specified provisions shall be equivalent
to a conviction for a violation of the specified provision.
E.
Lack of knowledge no defense. The lack of knowledge of acquiescence
or participation in, or responsibility for a public nuisance on the
part of the owner or any other person directly or indirectly in control
of a building, structure or real property at which it is alleged a
public nuisance exists shall not be a defense by such owner or other
person.
F.
Hearing. At the hearing, 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 notice given concerning the violations constituting
the public nuisance, proper service of notice concerning the administrative
proceedings on the owner or any other person directly or indirectly
in control, and the failure or refusal of such person to fully and
properly abate said nuisance despite notice and opportunity to do
so. The owner and/or any other person directly or indirectly in control
of the building. structure or real property, or their representative,
shall have the right to examine such evidence, cross-examine any witnesses
presented by the Village Attorney or his/her designee and 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 such witnesses. The hearing shall also
provide an opportunity for the Village Attorney or his/her designee,
the owner or any other person directly or indirectly in control of
the building, structure or real property and the hearing panel to
reach an agreement concerning the remedial measures required to abate
the public nuisance and the time frame within which they are to be
done.
G.
Panel's findings. If no agreement is reached at the administrative
hearing, the panel shall provide a written decision stating their
determination as to whether or not a public nuisance exists 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 owners and/or any other person directly or indirectly
in control are to perform or undertake to abate the public nuisance,
along with a specified time frame within which they are to be done.
This decision shall be provided as soon after the hearing as reasonably
possible to the Village Mayor, the Village Board, the Village Attorney,
the chief Code Enforcement Officer, the Chief of Police and the owners
and/or any other person directly or indirectly in control of the building,
structure or real property.
H.
Cost of administrative hearing. Should the hearing panel determine
that a public nuisance exists and direct an abatement, the panel may
impose a civil penalty reflecting the cost of the administrative hearing
against the owner and/or any other person directly or indirectly in
control of the building, structure or real property in an amount up
to $1,000, or such additional amount as may be determined from time
to time by resolution of the Village Board of Trustees.
A.
Monitoring. Compliance with the remedial measures required to abate
a public nuisance set forth in either an unchallenged notice, an agreement
reached at an administrative hearing or the written decision of a
hearing panel shall be monitored by the Police Department and/or the
Code Enforcement Officer. The Police Chief and/or the Code Enforcement
Officer shall provide written notification of such compliance or noncompliance
to the Village Mayor, the Village Board, the Village Attorney and
the owner and/or any other person directly or indirectly in control
of the building, structure or real property.
B.
Compliance. If the subject nuisance is satisfactorily abated within
the specified time frame no further action will be taken.
A.
The Village Attorney 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 and serving of a summons and complaint
in the manner required by New York State Civil Practice Law and Rules.
B.
The venue of the action shall be in the New York State Supreme Court
(Supreme Court) located in the County of Delaware where the public
nuisance is being conducted, maintained, permitted or allowed.
C.
In the event personal jurisdiction cannot he obtained over a proper
party, 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 Village Assessor.
D.
With respect to any action commenced or to be commenced, the Village
Attorney may file a notice of pendency pursuant to the New York State
Civil Practice Law and Rules.
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 defendants have conducted, maintained, permitted or allowed a
public nuisance, a penalty may be awarded as deemed appropriate by
the Court. Any penalty so awarded shall become a taxable lien against
the real property. Upon recovery, such penalty shall be paid into
the Village's general fund.
A.
Nothing in this chapter shall limit the Village from seeking a permanent
injunction, a preliminary injunction or a temporary restraining order.
B.
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 otherwise allowed a public nuisance, a permanent
injunction may be granted as ordered by the Court.
Injunctive action taken by the Village 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 owners of their duties, responsibilities and legal
obligations as related to the building, structure or real property.
In addition to the procedures established elsewhere in this
chapter, the Mayor or the Mayor's designee, after notice and
opportunity for a hearing has been given and a determination that
a public nuisance exists has been made, shall be authorized:
A.
To order the closing of the building, structure or real property
to the extent necessary to abate the nuisance;
B.
To suspend for a period not to exceed six months or revoke for a
period of 13 months a certificate of use issued for such building,
structure or real property, and to prevent the operator from obtaining
a new certificate of use for another location for the period of suspension
or revocation;
C.
To suspend for a period not to exceed six months or revoke for a
period of 13 months any occupational license or permit issued by the
Village related to the conduct of a business or trade at a building,
structure or real property, which suspension or revocation shall also
apply to any other locations operated by the holder for which the
license or permit is required;
D.
To suspend for a period not to exceed six months or revoke for a period of 13 months any fraternity or sorority house special use permit issued by the Village pursuant to Article XIB of Chapter 300 of the Village Code; or
E.
Any combination of the above.
A.
Orders of the Mayor or the Mayor's designee issued pursuant
to this section shall be posted at the building. structure or real
property where a public nuisance exists or is occurring in violation
of law and shall be mailed to the owner of record thereof within one
business day. of the posting.
B.
Five business days after the posting of an order issued pursuant
to this section and upon the written directive of the Mayor or the
Mayor's designee, officers of the Village of Delhi Police Department
are authorized to act upon and enforce such orders.
C.
Where the Mayor or the Mayor's designee closes a building, structure,
or real property pursuant to this section, such closing shall be for
such period as the Mayor or the Mayor's designee may direct,
but in no event shall the closing be for a period of more than 13
months from the posting of the order pursuant to this section. If
the owner, lessor, or lessee shall file a bond in an amount determined
by the Mayor or the Mayor's designee, but not exceeding the value
of the property ordered to be closed, and submit proof satisfactory
to the Mayor or the Mayor's designee that the nuisance has been
abated and will not again be created, maintained or permitted for
such period of time as the building, structure or real property has
been directed to be closed by the order of the Mayor or the Mayor's
designee, then the Mayor or the Mayor's designee may vacate the
provisions of the order that direct the closing of the building, structure,
or real property.
D.
A closing directed by the Mayor or the Mayor's designee pursuant
to this section shall not constitute an act of possession, ownership,
or control by the Village of the closed building, structure or real
property.
A.
It shall be a misdemeanor for any person to use or occupy any building,
structure, or real property, or portion thereof, ordered closed by
the Mayor or the Mayor's designee pursuant to this chapter.
B.
Mutilation or removal of a posted order of the Mayor or the Mayor's
designee shall be punishable by a fine of not less than 5250 or by
imprisonment not exceeding 15 days, or both, provided such order contains
therein a notice of such penalty.
C.
Intentional disobedience or disregard of any provision of orders
issued by the Mayor or the Mayor's designee pursuant to this
section, in addition to any other punishment prescribed by law, shall
be punishable by a fine of not more than $1,000 or by imprisonment
not to exceed six months, or both.
If any clause, sentence, paragraph, word, section or part of
this chapter shall be adjudged by any court of competent jurisdiction
to be unconstitutional, illegal or invalid, such judgment shall not
affect, impair or invalidate the remainder thereof, but shall be confined
in its operation to the clause, sentence, paragraph, word, section
or part thereof, directly involved in the controversy in which said
judgment shall have been rendered.
Nothing within this section of the Code of the Village of Delhi
shall preclude the Delhi Police and/or the Delhi Code Enforcement
Officers from prosecuting and/or enforcing the very same acts of public
nuisance against the same owners, 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.
Nothing within this section of the Code of the Village of Delhi
shall preclude residents of the Village from bringing and maintaining
a suit to abate any nuisance in the Village under the provisions of
§ 715 of the New York State Real Property Actions and Proceedings
Law, § 231 of the New York Real Property Law or a public
nuisance action where they can show that they have suffered special
injury or damage. Furthermore, nothing within this section shall preclude
residents of the Village from bringing a private nuisance action against
any other resident.
This chapter shall become effective immediately upon its filing
in the office of the Secretary of State in accordance with § 27
of the Municipal Home Rule Law.
