[HISTORY: Adopted by the Town Board of the Town of Lyons.
Amendments noted where applicable.]
The Town Board finds that public nuisances exist in the Town
of Lyons in the operation of certain establishments and the use of
property, including residential premises, in flagrant violation of
the Penal Law of the State of New York and the laws of the Town of
Lyons, which substantially and seriously interfere with the interest
of the public in the quality of life and total community environment and
commerce in the Town of Lyons, property values and the public health,
safety, peace, comfort or convenience and welfare. The Town Board
further finds that the continued occurrence of such activities and
violations is detrimental to the health, safety and welfare of the
Town of Lyons and of the business thereof and the visitors thereto.
It is the purpose of this chapter to authorize and empower the Town
to impose sanctions and penalties for such public nuisances, and such
powers 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 Town Board further
finds that the sanctions and penalties imposed by the Town pursuant
to this chapter constitute an additional and appropriate method of
enforcement, and that the sanctions and penalties are reasonable and
necessary in order to protect the health and safety of the people
of the Town and to promote the general welfare.
For purposes of this chapter, a public nuisance is declared
to exist where behavior in the use of or on the premises unreasonably
interferes with the health, safety, peace, comfort or convenience
of the general community within the past six months of such frequency
or duration that the continued occupancy of the premises will presume
to continue such unreasonable interference, and regardless of whether
or not a person has been convicted for violation of the Penal Law
of the State of New York or any local law. Such activity includes,
but shall not be limited to, any one or more of the following:
A.
Any building, structure, or real property used for purposes of illegal
use, possession, or distribution of a drug, controlled substance or
marijuana as defined by the New York State Penal Law.
B.
Any building, structure, or real property used for 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 materials as defined
by the New York State Penal Law.
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
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 purposes of
illegal sale, manufacture, or consumption of alcoholic beverages as
defined by the New York State Alcoholic 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 local laws of the Town of Lyons, including but not limited to Chapter 108, Animals; Chapter 120, Building Code Administration and Enforcement; Chapter 152, Fire Prevention; Chapter 204, Noise; Chapter 300, Zoning; and the New York State Uniform Fire Prevention and Building Code, including the Property Maintenance Code of New York State.
J.
Any building, structure, or real property wherein an occupant, guest,
or business invitee commits criminal activities or other offenses
involving assault, gang assault, harassment, or disorderly conduct,
as said criminal activities are defined by the New York State Penal
Law.
The existence of three or more criminal convictions for any of the activities set forth in the definition of "public nuisance" in § 215-2 at any building, structure, or real property within a two-year period prior to the commencement of a civil action and/or an administrative hearing shall be prima facie evidence of the existence of a public nuisance.
As used in this chapter, the following terms shall have the
meanings indicated:
The Town Board of the Town of Lyons.
The Code Enforcement Officer of the Town of Lyons or his
or her designee.
The entry of a guilty plea to, and/or a verdict of guilty
for, one or more counts set forth in an accusatory instrument.
The Town officer or other person designated or appointed
by the Town Board, to act as the hearing officer under this chapter.
The person who is listed as the mortgagee in any unsatisfied
or otherwise open mortgage recorded in the Wayne County Clerk's office.
The person in whose name the real estate affected by the
order is recorded as the owner in the office of the Wayne County Clerk.
The building, place, or property whereon the public nuisance
is being conducted or exists.
The following represent other evidence of prohibited conduct
as a presumption of the existence of a public nuisance:
A.
Conviction for any of the activities set forth in the definition of a "public nuisance" in § 215-2 occurring on or in immediate proximity to the property.
B.
Arrest for any of the activities set forth in the definition of a "public nuisance" in § 215-2 occurring on or in immediate proximity to the property.
C.
Service of an accusatory instrument charging any of the activities set forth in the definition of "public nuisance" in § 215-2 occurring on or in immediate proximity to the property. For purposes of this chapter, "accusatory instrument" shall include, but is not limited to, any criminal information, misdemeanor, and/or felony complaint filed in a court of competent jurisdiction and/or, with regard to unfit, unsafe and/or fire-damaged buildings or structures on or in immediate proximity to the property, a notice of violation issued by the Town of Lyons Code Enforcement Officer and/or other authorized entities or officials with jurisdiction in the Town.
D.
Service of a search warrant on the building, structure, or real property
where controlled substances, marijuana, and/or illegal firearms or
weapons are seized.
E.
The finding of illegal controlled substances or illegal firearms
or weapons on the building, structure, or real property.
F.
Investigative purchases of illegal drugs, controlled substances or
marijuana on the building, structure, or real property by law enforcement
agencies or their agents.
A.
The Code Enforcement Officer shall have the authority:
(1)
To order the discontinuance of any activity which constitutes a public
nuisance on or in any premises within the Town;
(2)
To issue a decision and order suspending or revoking, for a period
not to exceed one year, the certificate of occupancy and/or operating
permit of a rental occupancy and/or rental dwelling unit pursuant
to local law, if applicable, for the building, structure, or real
property. Such decision/order shall be issued only after notice and
hearing and an opportunity to be heard.
B.
Where the public nuisance continues after service of the order or
orders to discontinue, the Code Enforcement Officer may refer same
to the hearing officer for a hearing as hereinafter provided.
C.
The hearing officer, after notice of hearing and an opportunity to
be heard, shall be authorized:
(1)
To order the discontinuance of such activity at the premises where
such public nuisance exists;
(2)
To order the closing of the premises to the extent necessary to abate
the nuisance or that said individual or individuals vacate the premises;
or
(3)
To determine that the alleged violations are insufficient as to warrant
the issuance of an order as provided herein.
A.
Prior to the issuance of an order by the hearing officer pursuant
to this chapter, the hearing officer shall give notice and opportunity
for a hearing to the owner, lessor, lessee, agent and all the persons
in possession or having charge of the premises wherein the public
nuisance has been or is being conducted, maintained or permitted.
Such notice and opportunity to be heard shall be also given to the
mortgagee of the premises. Such notice shall be served upon an owner,
lessor, lessee, agent and all the persons in possession or having
charge of the premises pursuant to § 735 of the Real Property
Actions and Proceedings Law, and upon a mortgagee by means of certified
mail, return receipt requested, sent to the mortgagee's last known
address, 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 any court before the hearing.
B.
Hearing officer's finding and recommendation. Within five business
days of the hearing, the hearing officer shall provide written findings
of fact to the Town Board. Such written findings shall state whether
prima facie evidence exists of a public nuisance at the building,
structure, or real property and shall further provide a written recommendation
of remedies to abate the public nuisance.
C.
Contents of notice. Such notice shall:
(1)
Specify the activity or activities creating the nuisance;
(2)
Provide 30 days for elimination of the nuisance;
(3)
Inform the person to whom it is directed of his/her right to apply
within 10 days for a hearing, before the hearing officer;
(4)
Inform the owner/landlord that upon the expiration of 30 days after
service with no hearing, or upon noncompliance with any written agreement
reached at the hearing before the hearing officer, the hearing officer
may issue an order, and the Code Enforcement Officer or Town Attorney
shall act to obtain compliance as provided by this chapter;
(5)
Inform the owner/landlord of his/her obligation to post a copy of
the notice within five days in a conspicuous place so that all persons
or occupants entering the premises shall have notice that the public
nuisance is being conducted, maintained, or permitted on the premises,
and that, upon 30 days after service of the notice, the Code Enforcement
Officer or Town Attorney shall act to obtain compliance as provided,
including but not limited to the closing of the premises for a period
not to exceed one year.
D.
Presumption of knowledge. Written notice delivered by the Town to
the property owner, operator, manager, tenant, lessee, or other occupant
of a building, structure, or real property by first-class, certified,
or registered United States mail, or by personal service on the owner,
of any activity or activities constituting a public nuisance shall
be prima facie evidence of knowledge of said public nuisance.
E.
Lack of actual knowledge is not a defense. The lack of knowledge
of, acquiescence or participation in or responsibility for a public
nuisance on the part of the owner, lessor, lessee, mortgagee and all
those persons in possession or having charge of, as agent or otherwise,
or having any interest in the premises or personal property, used
in conducting or maintaining the public nuisance shall not be a defense
by such owner, lessor and lessee, mortgagee and such other persons.
F.
Issuance of orders.
(1)
The Code Enforcement Officer shall issue the initial order provided
for in this chapter by posting said order on the premises wherein
the public nuisance is or has been occurring in violation of law and
mailing a copy of said order within one business day of the posing
of said order on the premises to the last known address of the owner
as listed in the office of the Town Assessor or as designated by the
owner.
(2)
The hearing officer shall have authority to issue an order following
the same procedure after the hearing has been completed.
A.
Five business days after the issuance of a final order of the hearing officer pursuant to § 215-6C and upon the request of the Code Enforcement Officer or the Town Attorney, any law enforcement officers with jurisdiction in the Town of Lyons are authorized to act upon and enforce such orders.
B.
Where the hearing officer closes premises pursuant to this chapter,
such closing shall be for a period as the hearing officer may direct,
but in no event shall the closing be for a period of more than one
year from such issuance of the order pursuant to this chapter. If
the owner, lessor, or lessee shall file a bond in the amount determined
by the hearing officer, but which may not exceed the value of the
premises ordered to be closed, and submit proof satisfactory to the
hearing officer that the nuisance has been abated and will not be
created, maintained or permitted during such period of time as the
premises have been directed to be closed by the order of the hearing
officer, then the hearing officer may vacate the provisions of the
order that direct the closing of the premises.
C.
Nothing in this section shall limit the authority of the Town Board
to take such other and further actions and to avail itself and the
Town of any right or remedy available to it under this chapter or
otherwise under local law or other applicable law deemed necessary
or appropriate to abate any public nuisance so as to ensure the protection
of the health, safety and welfare of the public.
A closing directed by the hearing officer pursuant to this chapter
shall not constitute an act of possession, ownership or control by
the Town of the closed premises.
A.
It shall be a misdemeanor for any person to use or occupy or to permit
any other person to use or occupy any premises or portion thereof
ordered closed by the hearing officer.
B.
Mutilation or removal of a posted order of the Code Enforcement Officer,
Chief of Police or hearing officer shall be punishable by a fine of
not more than $250 or by imprisonment not exceeding 15 days, or both,
provided such order contains therein a notice of such penalty.
C.
Intentional disobedience or resistance to any provision of the orders
issued by the hearing officer pursuant to this chapter, in addition
to any other punishment prescribed by law, shall be punishable by
a fine of not more than $500 or by imprisonment not to exceed six
months, or both.
The Code Enforcement Officer may promulgate rules and regulations
to carry out and give full effect to the provision of this chapter.
No officer, agent or employee of the Town of Lyons, New York,
shall be personally liable for any damage resulting from any official
determination, order or action required or permitted in the discharge
of his or her duties under this chapter.
The Code Enforcement Officer or hearing officer may request
and shall receive, so far as may be necessary in the discharge of
his or her duties, the assistance and cooperation of other departments
or officers and of all other municipal officials exercising any jurisdiction
over the construction, use or occupancy of buildings or the installation
of equipment therein.
