[HISTORY: Adopted by the Board of Trustees of the Village
of Owego 8-17-2015 by L.L. No.
4-2015. Amendments noted where applicable.]
GENERAL REFERENCES
Alcoholic beverages — See Ch. 76.
Animals — See Ch. 82.
Building Code — See Ch. 92.
Unsafe buildings — See Ch. 98.
Curfew — See Ch. 101.
Electrical standards — See Ch. 109.
Games of chance — See Ch. 121.
Littering — See Ch. 138.
Noise — See Ch. 146.
Peace and good order — See Ch. 153.
Property maintenance — See Ch. 159.
Rental units — See Ch. 162.
Solid waste — See Ch. 169.
Junk vehicles — See Ch. 190.
Zoning — See Ch. 195.
The Board of Trustees of the Village of Owego finds that public
nuisances exist in the Village of Owego in the operation of certain
establishments and the use of property in flagrant violation of certain
Penal Law and Municipal Code provisions, which nuisances substantially
and seriously interfere with the interest of the public in the quality
of life and total community environment, commerce in the Village,
property values and/or the public health, safety and welfare. The
Board of Trustees further finds that the continued occurrence of such
activities and violations is detrimental to the health, safety and
welfare of the people of the Village of Owego and of the businesses
thereof and the visitors thereto. It is the purpose of the Board of
Trustees to authorize and empower the Mayor to impose sanctions and
penalties for such public nuisances, and such power of the Mayor may
be exercised either in conjunction with, or apart from, the powers
contained in other laws, without prejudice to the use of procedures
and remedies available under such other laws. The Board of Trustees
further finds that the sanctions and penalties imposed by the Mayor
pursuant to this chapter constitute an additional and appropriate
method of law enforcement in response to the proliferation of the
above-described public nuisances. The sanctions and penalties are
reasonable and necessary in order to protect the health and safety
of the people of the Village and to promote the general welfare.
This chapter shall be known as the "Public Nuisance Abatement
Law."
As used in this chapter, the following terms shall have the
meanings indicated:
Any property or building abutting or within a one-hundred-foot
radius.
A public nuisance shall be deemed to exist whenever, through
violations of any of the following provisions resulting from separate
incidents at a building, erection or place, or immediately adjacent
to the building, erection or place, as a result of the operation of
a business, 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 following point system. Where more
than one violation occurs during a single incident, the total points
for the incident shall be the highest point value assigned to any
single violation.
A.
B.
The following violations shall be assigned a point value of four
points:
(1)
Section 240.20 of the Penal Law - Disorderly Conduct.
(2)
Chapter 159 of the Code of the Village of Owego - Property Maintenance, including any garbage collection violation. Each repeat offense is an additional four points.
(4)
Article 225 of the Penal Law - Gambling Offenses.
(5)
The Alcoholic Beverage Control Law.
(6)
Section 415-a of the Vehicle and Traffic Law - Vehicle dismantlers.
(7)
Sections 170.65 and 170.70 of the Penal Law - Forgery or Illegal
Possession of a Vehicle Identification Number.
(8)
Possession, use, sale or offer for sale of any alcoholic beverage
in violation of Article 18 of the Tax Law, or of any cigarette or
tobacco products in violation of Article 20 of the Tax Law.
(9)
The Agriculture and Markets Law.
(12)
Section 240.10 of the Penal Law - Unlawful Assembly.
(13)
Section 240.40 of the Penal Law - Appearance in Public Under
the Influence of Narcotics or a Drug Other Than Alcohol.
(14)
Section 240.45 of the Penal Law - Criminal Nuisance in the Second
Degree.
(16)
Article 221 of the Penal Law - Offenses Involving Marihuana,
including § 221.05 through 221.15.
C.
The following violations shall be assigned a point value of six points:
(1)
Article 178 of the Penal Law - Criminal Diversion of Prescription
Medications and Prescriptions.
(2)
Article 220 of the Penal Law - Controlled Substances Offenses.
(3)
Article 221 of the Penal Law - Offenses Involving Marihuana, including
§§ 221.20 through 221.55.
(4)
Sections 165.40 through 165.54 of the Penal Law - Criminal Possession
of Stolen Property.
(5)
Article 158 of the Penal Law - Welfare Fraud.
(6)
Section 147 of the Social Services Law - food stamp program fraud.
(7)
Section 2024 of Title 7 of the United States Code - Illegal Use of
Food Stamps.
(8)
Any use of commercial and/or business property contrary to Chapter 195 of the Zoning Code of the Village of Owego, or contrary to any special use permit or site plan approval issued thereunder.
(9)
Allowing persons on the premises in excess of occupancy limits.
(10)
Section 3383 of the Public Health Law - Imitation Controlled
Substances.
(11)
Operating a premises without the requisite certificate of occupancy or compliance, operating permit, or firesafety and property maintenance inspection in violation of Chapter 92 of the Code of the Village of Owego.
(12)
Operating a premises without the requisite electrical certificate of compliance in violation of Chapter 109 of the Code of the Village of Owego.
(13)
Section 240.46 of the Penal Law - Criminal Nuisance in the First
Degree.
D.
The following violations shall be assigned a point value of 10 points:
(1)
Article 230 of the Penal Law - Prostitution Offenses.
(2)
Article 265 of the Penal Law - Firearms and other Dangerous Weapons.
(3)
Sections 260.20 and 260.21 of the Penal Law - Unlawfully Dealing
with a Child.
(4)
Article 263 of the Penal Law - Sexual Performance by a Child.
(5)
Penal Law Section 240.37 - Loitering for the Purpose of Engaging
in a Prostitution Offense.
(6)
Section 260.10 of the Penal Law - Endangering the Welfare of a Child.
(7)
Penal Law offenses, including but not limited to murder, attempted
murder, assault, attempted assault and sex offenses.
E.
VIOLATION
All criminal offenses not listed herein shall be assigned a value
as follows: criminal violations shall be two points, misdemeanors
shall be four points, and felonies shall be six points.
Conduct, or evidence of conduct, prohibited under this chapter.
A violation does not require criminal prosecution and conviction,
but only a preponderance of evidence that the prohibited conduct is
occurring or has occurred. Evidence of prohibited conduct may include,
but is not limited to, police reports, investigative reports, execution
of search warrants, results of police surveillance, arrest and/or
conviction of local, state and federal laws, activities associated
with trafficking of controlled substances, finding of weapons and/or
controlled substances on or near the property, and increased volume
of traffic associated with the property.
A.
General. The Village Attorney may bring and maintain a civil proceeding
in the name of the Village of Owego in the Supreme Court of Tioga
County, or any other court of competent jurisdiction, to abate a public
nuisance and seek the following types of relief:
B.
Notice. Upon the accumulation of at least nine points within a period
of six months, the Mayor shall provide the owner, operator and lessee
of the building, structure or place notice of the violations constituting
such points and a statement that, "Your accumulation of points pursuant
to the Nuisance Abatement Law may result in penalties, including,
but not limited to, a permanent injunction, preliminary injunction,
temporary restraining order, temporary closing order, and civil penalties
of not less than $1,000 for each day or part thereof during which
a violation continues." The notice shall provide the owner, operator
and/or lessee 10 business days to provide the Mayor a written plan
to abate or prevent the public nuisance. If part of the plan to abate
or prevent the public nuisance is to evict a tenant, then the owner
shall commence the eviction proceeding within 20 business days from
the date of the notice. The notice shall inform the owner, operator
and lessee that in no case shall the plan to abate or prevent a public
nuisance include the eviction and/or any other penalty against a victim
of domestic violence related to any incident generating the accumulation
of points. Providing a plan to the Village shall not constitute a
defense to any subsequent legal action to enforce this chapter, whether
grounded upon any violation prior to, or after, the creation of the
plan.
C.
Permanent injunction.
(1)
The Village Attorney shall bring and maintain a civil proceeding
in the name of the Village of Owego to permanently enjoin a public
nuisance and the persons conducting, maintaining or permitting the
public nuisance from further conducting, maintaining, or permitting
the public nuisance. The owner, operator, and/or lessee of a building,
structure or place wherein the public nuisance is being conducted,
maintained or permitted may be named as defendant(s) in the action.
The existence of an adequate remedy at law shall not prevent the granting
of temporary or permanent relief pursuant to this chapter. The complaint
shall identify the building, structure or place wherein the nuisance
is being conducted, maintained or permitted, by describing it by Tax
Map number and/or street address, and shall name as defendants the
building, structure or place wherein the public nuisance is being
conducted, maintained or permitted, and the owners of the property.
(2)
In rem jurisdiction shall be complete over the building, structure
or place wherein the public nuisance is being conducted, maintained
or permitted by affixing the summons to the door of the building,
structure or place and by mailing the summons by certified or registered
mail, return receipt requested, to one of the owners who possesses
some part of or an interest in the property. Proof of service shall
be filed within two days thereafter with the clerk of the court designated
in the summons. Service shall be complete upon such filing.
(3)
The complaint for permanent injunction shall contain a description
of the attempts by the Village to notify and locate the owner, operator
and lessee of the property and describe the adverse impact associated
with the property on the surrounding neighborhood.
(4)
A judgment awarding a permanent injunction, pursuant to this chapter,
may direct the Village of Owego Police Department or the Tioga County
Sheriff's Office to seize and remove from the building, structure
or place all material, equipment and instrumentalities used in the
creation and maintenance of the public nuisance and shall direct the
sale of such property in the manner provided for the sale of personal
property under execution pursuant to the provisions of the Civil Practice
Law and Rules. The net proceeds of any such sale, after deduction
of the lawful expenses involved, shall be paid into the general fund
of the Village.
(5)
A judgment awarding a permanent injunction pursuant to this chapter
may authorize agents of the Village to forthwith remove and correct
construction and structural alterations in violation of the New York
State Fire Prevention and Building Code or the Code of the Village
of Owego. Any and all costs associated with these repairs or alterations
shall become a lien against said property and shall have priority
before any mortgage or other lien that exists prior to such filing,
except tax and assessment liens and any nuisance abatement lien.
(6)
A judgment awarding a permanent injunction, pursuant to this chapter,
may direct the closing of the building, structure or place by the
Owego Police Department or the Tioga County Sheriff's Office,
to the extent necessary to abate the nuisance, and shall direct the
Owego Police Department or the Tioga County Sheriff's Office
to post a copy of the judgment and a printed notice of such closing.
Mutilation or removal of such a posted judgment or notice while it
remains in force, in addition to any other punishment prescribed by
law, shall be punishable on conviction by a fine of not more than
$500 or by imprisonment not exceeding 15 days, or by both, provided
such judgment contains therein a notice of such penalty. Intentional
disobedience of, or resistance to, a permanent injunction, in addition
to any other punishment prescribed by law, shall be punishable on
conviction, by a fine of not more than $5,000, or by imprisonment
not exceeding six months, or by both.
(7)
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 one year from the posting of the judgment provided for
in this section. If the owner shall file a bond in the value of the
property ordered to be closed and submits proof to the court that
the nuisance has been abated and will not be created, maintained or
permitted for such period of time as the building, structure or place
has been directed to be closed in the judgment, the court may vacate
the provisions of the judgment that direct the closing of the building,
structure or place.
(8)
A closing by the Owego Police Department or the Tioga County Sheriff's
Office pursuant to this section shall not constitute an act of possession,
ownership or control by the Owego Police Department or the Tioga County
Sheriff's Office of the closed premises.
(9)
A judgment awarding a permanent injunction pursuant to this chapter
shall provide, in addition to the costs and disbursements allowed
by the Civil Practice Law and Rules, upon satisfactory proof by affidavit
or such other evidence as may be submitted, the actual costs, expenses
and disbursements of the Village in investigating, bringing and maintaining
the action.
(10)
A judgment rendered awarding a permanent injunction pursuant
to this chapter shall be and become a lien upon the building, structure
or place named in the complaint in such action, such lien to date
from the time of filing a notice of liens pending in the office of
the Clerk of the county wherein the building, structure or place is
located. Every such nuisance abatement lien shall have priority before
any mortgage or other lien that exists prior to such filing, except
tax and assessment liens.
D.
Preliminary injunction; temporary closing order; temporary restraining
order.
(1)
Pending an action for a permanent injunction, the court may grant
a preliminary injunction enjoining a public nuisance within the scope
of this chapter and the person or persons conducting, maintaining
or permitting the public nuisance from further conducting, maintaining
or permitting the public nuisance. An order granting the preliminary
injunction shall direct a trial of the issues at the earliest possible
time. Where preliminary injunction has been granted, the court shall
render a decision with respect to a permanent injunction at its earliest
convenience after the conclusion of the trial. A temporary closing
order or temporary restraining order may be granted pending a hearing
for a preliminary injunction where it appears by clear and convincing
evidence that a public nuisance within the scope of this chapter is
being conducted, maintained or permitted.
(2)
The officers serving a temporary restraining order shall forthwith
make and return to the court an inventory of personal property situated
in and used in conducting, maintaining or permitting a public nuisance
within the scope of this chapter and shall enter upon the building,
structure or place for such purpose. Such inventory shall be taken
in any manner which is deemed likely to evidence a true and accurate
representation of the personal property subject to such inventory,
including, but not limited to, photographing such personal property.
(3)
The officers serving a temporary restraining order shall, upon service
of the order, command all persons present in the building, structure
or place to vacate the premises forthwith. Upon the building, structure
or place being vacated, the premises shall be securely locked and
all keys delivered to the officers serving the order, who thereafter
shall deliver the keys to the fee owner, lessor or lessee of the building,
structure or place involved. If the fee owner, lessor or lessee is
not at the building, structure or place when the order is being executed,
the officers shall securely padlock the premises and retain the keys
until the fee owner, lessor or lessee of the building is ascertained,
at which time, the officers shall deliver the keys to such owner,
lessor or lessee if such individual resides within Tioga County.
(4)
Upon service of a temporary restraining order, the officer shall
post a copy thereof in a conspicuous place or upon one or more of
the principal doors at entrances of such premises where the public
nuisance is being conducted, maintained or permitted. In addition,
where a temporary restraining order has been granted, the officers
shall affix, in a conspicuous place or upon one or more of the principal
doors at entrances of such premises, a printed notice that shall state
that certain described activity is prohibited by court order and that
removal of property is prohibited by court order. If the temporary
restraining order directs that the premises are to be closed by court
order, the notice shall contain the legend. "Closed by Court Order,"
in block lettering of sufficient size to be observed by anyone intending
or likely to enter the premises, the date of the order, the court
from which issued and the name of the office or agency posting the
notice. Mutilation or removal of such a posted order or such a posted
notice while it remains in force, in addition to any other punishment
prescribed by law, shall be punishable, on conviction, by a fine of
not more than $500, or by imprisonment not exceeding 15 days, or by
both, provided such order or notice contains therein a notice of such
penalty. Intentional disobedience of, or resistance to, a preliminary
injunction, temporary restraining order, or temporary closing order,
in addition to any other punishment prescribed by law, shall be punishable,
on conviction, by a fine of not more than $5,000, or by imprisonment
not exceeding six months, or by both.
(5)
A temporary restraining order or preliminary injunction shall not
issue under this chapter, except upon the giving of a bond or security
by the applicant in the amount of $1,000, for the payment of such
costs and damages as may be incurred or suffered by any party who
is found to be wrongfully restrained or enjoined. A bond or security
shall not be required of the State of New York, municipal corporations,
or political subdivisions of the State of New York.
E.
Civil penalties. In addition to those penalties proscribed above,
any person or entity who violates any of the provisions of this chapter
by failure to comply with any of its requirements shall be liable
for a civil penalty of not less than $1,000 for each day, or part
thereof, during which such violation continues. The civil penalties
provided by this subsection shall be recoverable in an action instituted
in the name of the Village of Owego. No civil action pursuant to this
chapter shall be commenced without the appropriate authorization from
the Village Board of Trustees.
A.
In any action wherein the complaint alleges that the public nuisance
is being conducted or maintained in the residential portions of any
building or structure or portion thereof, which are occupied in whole,
or in part, as the home, residence or sleeping place of one or more
human beings, the court may, upon motion on notice by the plaintiff,
appoint a temporary receiver to manage and operate the property during
the pendency of the action in lieu of a temporary closing order. A
temporary receivership shall not continue after final judgment unless
otherwise directed by the court. Upon the motion of any party, including
the temporary receiver, or on its own initiative, the appointing court
may remove a temporary receiver at any time.
B.
The temporary receiver shall have such powers and duties as the court
shall direct, including, but not limited to, collecting and holding
all rents due from all tenants, leasing or renting portions of the
building or structure, making or authorizing other persons to make
necessary repairs or to maintain the property, hiring security or
other personnel necessary for the safe and proper operation of a dwelling,
prosecuting or defending suits flowing from his or her management
of the property and retaining counsel therefor, and expending funds
from the collected rents in furtherance of the foregoing powers.
C.
A temporary receiver, before entering upon his or her duties, shall
be sworn or shall affirm faithfully and fairly to discharge the trust
committed to such receiver. The oath or affirmation may be waived
upon consent of all parties.
D.
A temporary receiver shall give an undertaking, in an amount to be
fixed by the court making the appointment, that such receiver will
faithfully discharge his or her duties.
E.
A temporary receiver shall keep written accounts itemizing receipts
and expenditures, and describing the property and naming the depository
of receivership funds, which shall be open to inspection by any person
having an apparent interest in the property. Upon motion of the temporary
receiver, or of any person having an apparent interest in the property,
the court may require the keeping of particular records, or direct
or limit inspection, or require presentation of a temporary receiver's
accounts. Notice of motion for the presentation of temporary receiver's
accounts shall be served upon the sureties on the temporary receiver's
undertaking, as well as upon each party.
This chapter shall not be construed to exclude any other remedy
provided by law for the protection of the health, safety and welfare
of the people of the Village of Owego.
