[HISTORY: Adopted by the Town Board of the Town of Amherst 6-4-2018 by L.L. No. 16-2018. Amendments noted where applicable.]
GENERAL REFERENCES
Municipal opioid cost recovery and public nuisances — See Ch. 153.
This Chapter shall be called entitled "Town of Amherst Public
Nuisance Abatement Law."
A.
The Town Board of the Town of Amherst finds that a small percentage
of persons who own or control real property in the Town of Amherst
have allowed their property to be used for illegal purposes, or have
otherwise failed to properly maintain their property in accordance
with the Town Code of the Town of Amherst and/or the New York State
Uniform Building and Fire Code. Where the violations are habitual,
these properties interfere with the comfort, health, solitude and
quality of life of the individuals residing in the neighborhood; they
have created a significant impact upon the living conditions in the
Town's neighborhoods; and, they have raised justifiable concerns
about public safety. Chronic public nuisance activities have been
found to contribute to the general decay of affected neighborhoods,
which result in a lowering the value of surrounding properties.
B.
As a result of the activities occurring at these properties, and/or
the conditions in which they are maintained, these properties tend
to receive and require more than the general, acceptable level of
Police and Code Enforcement services. As a result they place an undue
and inappropriate burden on the Town of Amherst taxpayers. The Town
Board of the Town of Amherst has determined that existing laws do
not sufficiently encourage such property owners to take reasonable
steps to abate the nuisances that their property is creating, and
has determined that enhanced penalties will give such property owners
additional incentives to ameliorate the said problems, and help to
compensate the Town for the increase in Code Enforcement services.
C.
This local law is enacted to encourage property owners to recognize
their responsibility to ensure that activities occurring on their
property conform to the law and do not adversely affect their neighborhoods,
unduly burden the Town's Code Enforcement resources and to provide
a mechanism for the Town to take action against property owners who
fail to ensure property they own does not require a disproportionate
level of Code Enforcement resources to be devoted to such property.
This Chapter is not intended to discourage crime victims or a person
in legitimate need of police services from requesting them. This section
does not affect a property owner's duty to comply with all other
laws governing residential tenancies which are contained in the New
York State Statutes.
For the purpose of this Chapter, the following words, terms
and phrases, shall have the meanings ascribed to them in this section,
except where the context clearly indicates a different meaning:
The Chief of Police of the Amherst Police Department or any
person designated by the Chief of Police as his or her designee in
the enforcement of this Chapter.
Any natural person, association, partnership, company, corporation,
or entity capable of owning or using property in the Town of Amherst.
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
as defined by the New York State Penal Law.
Any building, structure or real property used for the purposes
of prostitution as defined by the New York 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 New York State Penal Law and this Code.
Any building, structure or real property used for purposes of
illegal gambling activity as defined in the New York 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 New York State Alcohol Beverage Control Law.
Any building, structure or real property wherein there exists
or has occurred a criminal nuisance as defined by the New York State
Penal Law.
Any building, structure or real property used for purposes of
loitering as defined by the New York State Penal Law.
Any building, structure or real property wherein an occupant,
guest or business invitee commits criminal activities, including but
not limited to, assault, harassment or disorderly conduct, as said
criminal activities are defined by the New York State Penal Law.
Any building, structure or real property used for purposes of
a business, activity or enterprise which is not licensed as required
by federal, state or local law and/or ordinance.
No owner, operator, manager, agent in control, 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,
agent in control, 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 (2) or more criminal convictions for any of the activities set forth in the definition of a public nuisance in § 152-3 at any building, structure or real property within a two (2) year period prior to the commencement of a civil action shall be prima facie evidence of the existence of
a public nuisance. A criminal conviction shall be defined as the entry
of a plea of guilty to or a verdict of guilty for one (1) or more
counts set forth in an accusatory instrument.
The existence of two (2) or more incidents of the following
activities at any building, structure or real property within a two
(2) year period prior to the commencement of a civil action shall
be prima facie evidence of the existence of a public
nuisance.
(1)
Arrest for any of the activities set forth in the definition of a "public nuisance" in § 152-3 occurring on or near the property.
(2)
Service of an accusatory instrument charging any of the activities set forth in the definition of a "public nuisance" in § 152-3 occurring on or near the property.
(3)
Service of a search warrant on the building, structure or real property
where controlled substances and/or weapons are seized.
(4)
Finding of illegal controlled substances or illegal firearms or weapons
on the building, structure or real property.
(5)
Investigative purchases of illegal controlled substances on the building,
structure or real property by law enforcement agencies or their agents.
(a)
The Town Attorney may bring and maintain a civil action in the name
of the Town to abate a public nuisance and shall commence the civil
action by the filing of a summons and complaint in the manner required
by New York State Civil Practice Laws and Rules.
(b)
The summons and complaint or petition 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 (1)
of the owners of some portion of, or having some interest in the property.
(c)
Any owner, operator, manager, tenant, lessee or other occupier of
the building, structure or real property may also be named as a defendant.
(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/her agent had notice of the nuisance
and had an opportunity to abate the nuisance.
(f)
The venue of the action shall be Supreme Court, Erie County.
(g)
In the case of a summons and complaint, 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 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.
(i)
With respect to any action commenced or to be commenced, the Town
Attorney may file a notice of pendency pursuant to the New York 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 One Thousand Dollars and
Zero Cents ($1,000.00) 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 Town. Upon recovery, such penalty shall
be paid into the General Town Fund.
(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 Town to remove
and correct any conditions in violation of this Code. The judgment
may order that the costs of removing and correcting the violations,
plus a charge of fifty percent (50%) as compensation to the Town for
administering, supervising and handling such work, shall be charged
against defendants and awarded to the Town. The judgment may further
order that the costs of removing and correcting the violations, plus
a charge of fifty percent (50%) as compensation to the Town 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 Town.
(d)
A judgment ordering a permanent injunction may direct the closing
of the building, structure or real property by the Amherst 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 Civil Practice Laws and Rules
and for the actual costs, expenses and disbursements of the Town in
investigating, bringing and maintaining the action.
(a)
If the judgment directs the closing of the building, structure or
real property, the Amherst Police Department shall serve the judgment
upon defendants in the manner required by the Civil Practice Laws
and Rules and shall post a copy of the judgment upon one (1) 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 Amherst Police Department shall affix upon one (1)
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. Mutilation or removal of such posted judgment
or notice while it remains in force will be considered a separate
violation and shall be punishable as contempt of court.
(c)
After posting, the Amherst 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 Amherst Police Department may secure the premises.
(d)
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.
(e)
A closing by the Amherst Police Department shall not constitute an
act of possession, ownership or control by the Town.
Upon a motion or order to show cause from the Town 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 Town, the Town Attorney may initiate an administrative process
before a hearing panel as stated herein.
(1)
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 Laws and Rules.
(2)
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.
(3)
Hearing panel. The panel shall consist of a member to be appointed
by the Town's Building Commissioner, a member to be appointed
by the Chief of Police and a member to be appointed by the Town Supervisor
who shall preside at such hearing. Each appointing authority shall
be authorized to appoint himself/herself or any member of his/her
staff to the hearing panel.
(4)
Hearing. At the time and place designated in the notice, the Town
Attorney or his/her designee shall present all relevant evidence as
to 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 cross-examine any witnesses presented by the Town Attorney
or his/her designee. The owners of the building, structure or real
property, or their representatives, may present any relevant evidence
in their defense. The Town Attorney, or his/her designee, shall have
the right to cross-examine any witnesses presented by the owners of
the building, structure or real property, or their representatives.
(5)
The panel's finding and recommendation: within five (5) days
of the hearing, the panel shall provide a finding of fact to the Town
Supervisor or the Town Supervisor'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.
The Town Supervisor, or the Town Supervisor's designee,
upon receipt of a finding of fact and recommendation from the panel,
shall have the following powers in regards to the abatement of public
nuisances:
(1)
To suspend or revoke, for a period not to exceed one (1) year, the
certificate of occupancy for the building, structure or real property.
