The Town Board of the Town of Union finds that public nuisances
exist in the Town of Union 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 public health, safety, welfare, quality of life and
total community environment, commerce in the Town and property values.
The Board further finds that the continued occurrence of such activities
and violations are detrimental to the health, safety and welfare of
the people of the Town of Union and of the businesses thereof and
the visitors thereto. It is the purpose of this chapter to authorize
and empower the Town Board to impose sanctions and penalties for such
public nuisances, which power may be exercised either in conjunction
with or apart from, and without prejudice to, any and all additional
powers and remedies conferred upon the Town Board by local, state
and federal laws and regulations. The Town Board further finds that
the sanctions and penalties imposed by the Town Board 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 Town
and to promote the general welfare.
This chapter shall be known as the "Property and Building Nuisance
Reform Law."
As used in this chapter, the following terms shall have the
meanings indicated:
BUILDING
A structure where space is covered or enclosed for the use,
shelter, storage or protection of persons, animals, chattel or property
of any kind, and which is permanently affixed to the land.
BUILDING, ACCESSORY
A building subordinate to the principal building on the lot
and used for purposes which are clearly related but incidental to
that of said principal building.
BUSINESS
An activity, occupation, employment or enterprise which requires
time, attention, labor and material and wherein merchandise is exhibited
or sold, or services offered.
BUSINESS OFFICE
A building or portion thereof utilized to accommodate the
activities of a business.
CONVICTION
A.
A conviction for an offense in a court of competent jurisdiction
or in or by an administrative agency or bureau shall not be required
to prove a violation under this chapter. Instead, the Town's
burden of proof shall be by a preponderance of the evidence that the
violations have occurred. However, a conviction, as defined and applied
in accordance with the provisions of § 1.20 of the Criminal
Procedure Law, in any court of competent jurisdiction, or a plea of
guilty shall constitute conclusive proof of a violation. Conviction
of an attempt to commit a violation of any of the specified provisions
shall be considered a conviction for a violation of the specified
provision.
B.
Notwithstanding the provisions of Subsection
A above, under no circumstances shall a conviction or a plea of guilty constitute a violation under this chapter where said conviction or plea stemmed from a crime committed at the building, property or place in issue, and the crime was first reported by an owner or tenant of the property, place, building or, in the case of a multiunit building, the specific building unit where the crime occurred. Nor shall a conviction or a plea of guilty constitute a violation under this chapter where said conviction or plea stemmed from a domestic violence-related incident that occurred at the building unit, building, property or place in issue, which domestic violence incident was first reported by the victim thereof.
DISTURBANCE
Actions, behavior, or conduct by person or persons at a particular
location that disturbs the peace.
KNOWLEDGE OF PUBLIC NUISANCE
The presumption of knowledge provided by Subdivision 1 of
§ 235.10 of the Penal Law shall be applicable to this chapter.
Notice, by mail or personal service of activities detailing a public
nuisance to the property owner of record shall be evidence of knowledge
of the public nuisance.
LOT
A parcel of land with or without buildings or structures
delineated by lot line and having access to a street as defined in
this chapter.
PUBLIC NUISANCE
A.
For the purposes of Article
II of this chapter, a public nuisance shall be deemed to exist whenever, through violations of any of the laws or regulations, or commission of any of the business activity related offenses listed in Subsection
C below, the building, property or place in issue, or immediately adjacent to the building, property or place in issue accumulates 12 or more points within a period of six months or 18 or more points within a period of 12 months in accordance with the point system described in the said Subsection
C. 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. All references to statutes and codes in Subsection
C below shall mean the statute or code provision in effect at the time this chapter is adopted and as may be amended from time-to-time.
B.
Notwithstanding any contrary provisions of this chapter, under no circumstances shall points accumulate toward a public nuisance determination where violations are discovered during the course of an investigation by law enforcement or code enforcement personnel in response to a request for assistance by an owner or tenant of the property, place, building or, in the case of a multiunit building, the specific building unit where the violation occurred. Nor shall points accumulate toward a public nuisance determination where violations are discovered during the course of such an investigation in connection with a report of a domestic violence-related incident at the building unit, building, property or place in issue, where the victim of said domestic violence-related incident made the request for assistance. Notwithstanding the above, an owner, manager or tenant who participates in or persistently condones or allows such public nuisance to occur shall not be entitled to the protection of this Subsection
B.
C.
Violations are assigned point values as follows:
(1)
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of two points:
(a)
Sections 240.36 and 240.37 of the Penal Law - Loitering in the
First Degree.
(b)
Suffering or permitting the premises to become disorderly, including
suffering or permitting fighting or lewdness.
(c)
Article
50 of Chapter
300 of the Code of the Town of Union - Noise limits: three or more violations within a two-week period.
(d)
Chapter
130 of the Code of the Town of Union - Garbage, Rubbish, Refuse and Recyclables: three or more violations within a two-week period.
(e)
Article 1 of Chapter 71-5D of the Code of the Town of Union
regarding the regulation of dogs.
(f)
The Agriculture and Markets Law-dangerous dog: where a dog is
determined by a court to be a dangerous dog but no human was attacked
or injured.
(2)
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of four
points:
(a)
Disorderly conduct by an individual or individuals: three or
more violations within a two-week period.
(b)
Chapter
155 of the Code of the Town of Union - Property Maintenance, or the New York State Property Maintenance Code: three or more violations within a two-month period.
[1]
Each repeat offense constitutes an additional violation, and
warrants the assessment of an additional four points.
(c)
Disturbances of the peace at a particular location: three or
more violations within a two-week period.
(d)
Article 225 of the Penal Law - Gambling Offenses.
(e)
The Alcoholic Beverage Control Law.
(f)
Section 415-a of the Vehicle and Traffic Law - Vehicle Dismantlers.
(g)
Sections 170.65 and 170.70 of the Penal Law - Forgery or Illegal
Possession of a Vehicle Identification Number.
(h)
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.
(i)
The Agriculture and Markets Law-dangerous dog: where a dog is
determined by a court to be a dangerous dog and a human was attacked
or injured.
(j)
All violations of Chapter
300 of the Code of the Town of Union - Zoning, except for those listed in Subsection C(1) of this section.
(3)
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of six points:
(a)
Article 178 of the Penal Law - Criminal Diversion of Prescription
Medications and Prescriptions.
(b)
Article 220 of the Penal Law - Controlled Substances Offenses,
including sale or distribution of the same.
(c)
Article 221 of the Penal Law - Offenses Involving Marijuana.
(d)
Sections 165.15, (6), (7), and (8), 165.40, 165.45, 165.50,
165.50, 165.52, 165.54, 165.71, 165.72 and 165.73 of the Penal Law
- Criminal Possession of Stolen Property.
(e)
Article 158 of the Penal Law - Welfare Fraud.
(f)
Section 147 of the Social Services Law - Food Stamp Program
Fraud.
(g)
Section 2024 of Title 7 of the United States Code - Illegal
Use of Food Stamps.
(h)
Allowing persons in/on the building, property or place in issue
in excess of occupancy limits established by the New York State Uniform
Building and Fire Prevention Code.
(i)
Section 3383 of the Public Health Law - Imitation Controlled
Substances.
(4)
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of 10 points:
(a)
Article 230 of the Penal Law - Prostitution Offenses.
(b)
Article 265 of the Penal Law - Firearms and other Dangerous
Weapons.
(c)
Sections 260.20 and 260.21 of the Penal Law - Unlawfully Dealing
with a Child.
(d)
Article 263 of the Penal Law - Sexual Performance by a Child.
(e)
Loitering for the purpose of engaging in a prostitution offense.
(5)
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of 12 points:
(a)
Penal Law violations considered to be more serious than those
enumerated in Subsection C(4) of this section, including but not limited
to murder, attempted murder, felony assault, felony attempted assault,
felony arson, felony attempted arson, felony sex offenses, felony
attempted sex offenses and felony crimes related to the unlawful manufacture
of methamphetamine or other illegal drugs.
TESTIMONY
Oral, written or other documented evidence tending to show
or prove the truth of the matter asserted.
VIOLATION
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 and/or illegal business
activity conduct may include, but is not limited to, police reports,
investigative reports, execution of search warrants, results of police
surveillance, arrest and/or conviction based on local and state and
federal laws, activities associated with trafficking of controlled
substances, finding of weapons and/or controlled substances on or
near the property, increased volume of traffic associated with the
business activities at the property. Notwithstanding the foregoing,
evidence obtained during the course of responding to a request for
assistance made by an owner or tenant of the at issue property, place,
building or, in the case of a multiunit building, the specific building
unit where the violation occurred, shall not constitute evidence of
prohibited conduct under this chapter, except an owner, manager or
tenant who participates in or persistently condones or allows such
public nuisance to occur shall not be entitled to the protection of
this paragraph.
YARD
An open area on a lot which is open to the sky and that is unoccupied by any land use or activity except as may otherwise be provided in Chapter
300, Zoning, of the Code of the Town of Union.
This article shall be applicable to all public nuisances as determined in accordance with the definitions contained in Article
I of this chapter.
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 Town of Union.