[HISTORY: Adopted by the Village Board of the Village of
Yorkville 7-7-2020 by L.L. No. 4-2020. Amendments noted where applicable.]
The following words, terms, and phrases, when used in this chapter,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
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
or marijuana as defined by the State of New York Penal Law.
Any building, structure or real property used for the purposes
of prostitution as defined by the State of New York Penal Law.
Any building, structure or real property used for the purpose
of indecency, obscene performances and/or promotion of obscene material
as defined by the State of New York Penal Law and this Code book.
Any building, structure or real property used for purposes of
illegal gambling activity as defined by the State of New York Penal
Law.
Any building, structure or real property used for the purpose
of the commission of illegal possession, use or sale of firearms or
weapons as defined by the State of New York 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 State Alcohol Beverage Control Law.
Any building, structure or real property wherein there exists
or has occurred a criminal nuisance as defined by the State of New
York Penal Law.
Any building, structure or real property used for purposes of
loitering as defined by the State of New York Penal Law.
Any building, structure, or real property wherein an occupant,
guest or business invitee commits criminal activities involving assault,
gang assault, harassment or disorderly conduct, as said criminal activities
are defined by the State of New York Penal Law.
Any building, structure or real property wherein there exists
or has occurred any violation of this Code, including but not limited
to the sections which include animal control, zoning, New York State
Uniform Fire Prevention and Building Code, including 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 this Code by reference.
No owner, operator, manager, 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,
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 or more criminal convictions for any of the activities set forth in the definition of a "public nuisance" in § 99-1 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. For the purpose of this chapter, a "criminal conviction" shall be defined as the entry of the plea of guilty to, and/or a verdict of guilty for, one or more counts set forth in an accusatory instrument.
The existence of two or more incidents of the following activities
at any building, structure or real property within a one-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:
A.
Conviction for any of the activities set forth in the definition of a "public nuisance" in § 99-1 occurring on or near the property.
B.
Arrest for any of the activities set forth in the definition of a "public nuisance" in § 99-1 occurring on or near the property.
C.
Service of an accusatory instrument charging any of the activities set forth in the definition of a "public nuisance" in § 99-1 occurring on or near the property. For the purpose of this chapter, an accusatory instrument shall include, but not be limited to, any criminal information, misdemeanor and/or felony complaint filed in a court of competent jurisdiction, and/or, with regards to unfit, unsafe, and/or fire-damaged structures on or near the property, a notice of violation issued by the Village of Yorkville Codes Office and/or Police Department and/or other authorized entity with jurisdiction in the Village of Yorkville and/or order to abate issued by the administrative panel pursuant to this Code.
D.
Service of a search warrant on the building, structure, or real property
where controlled substances, marijuana, and/or weapons are seized.
E.
Finding of illegal controlled substances and/or illegal firearms
or weapons on the building, structure, or real property.
F.
Investigative purchases of illegal controlled substances on the building,
structure or real property by law enforcement agencies or their agents.
A.
The Village Board 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 of a summons and complaint in the manner required
by State Civil Practice Law and Rules.
B.
The summons and complaint 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 of the owners
of some portion of or some interest in the property.
C.
The summons and complaint may also name as defendants any owner,
operator, manager, tenant, lessee or other occupier of the building,
structure, or real property.
D.
The complaint shall allege the facts constituting the public nuisance.
E.
The complaint shall be accompanied by affidavits for the purpose
of showing that the owner or his agents had notice of the nuisance
and had an opportunity to abate the nuisance.
F.
The venue of the action shall be in the county where the public nuisance
is being conducted, maintained, permitted, or allowed.
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 on either the Tax Map and/or address.
H.
Defendants other than the building, structure or real property shall
be served with the summons and complaint in the manner required by
the State Civil Practice Law and Rules.
I.
With respect to any action commenced or to be commenced, the Village
Board may file a notice of pendency pursuant to the State Civil Practice
Law and Rules.
If, upon the trial of the action for a public nuisance or upon
a motion for summary judgment, a finding is made that the defendant(s)
have conducted, maintained, permitted or allowed a public nuisance,
a penalty may be awarded in the amount not to exceed $1,000 for each
day it is found that defendant(s) conducted, maintained, permitted
or allowed the public nuisance after notice to abate had been given
by the Village. Upon recovery, such penalty shall be paid into the
general Village fund.
A.
If, upon the trial of an action for a public nuisance or upon a motion
for summary of judgment, a finding is made that the defendant(s) have
conducted, maintained, permitted or allowed a public nuisance, a permanent
injunction may be granted.
B.
A permanent injunction may prohibit defendant(s) conducting, maintaining,
permitting, or allowing the public nuisance.
C.
A permanent injunction may authorize agents of the Village to remove
and correct any conditions in violation of this Code. The judgment
may further order that the cost of removing and correcting the violations,
plus a charge of 50% as compensation to the Village for administering,
supervising and handling such work, shall be charged against the defendant(s)
and awarded to the Village. The judgment may further order that the
cost of removing and correcting the violations, plus a charge of 50%
as a compensation to the Village 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 Village.
D.
A judgment ordering a permanent injunction may direct the closing
of the building, structure, or real property by the Village 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 State Civil Practice Law and
Rules and for the actual costs, expenses, and disbursements of the
Village in investigating, bringing, and maintaining the action.
A.
If the judgment directs the closing of the building, structure or
real property, the Village Police Department shall serve the judgment
upon defendant(s) in the manner required by the State Civil Practice
Law and Rules and shall post a copy of the judgment upon one or more
doors at the entrances of the building, structure or real property
or in another conspicuous space on the building, structure or real
property.
B.
In addition, the Village Police Department shall affix upon one or
more of the doors or 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.
C.
Mutilation or removal of such posted judgment or notice while it remains in force will be considered a separate violation under the State Penal Law and shall be punishable pursuant to § 99-7 of this Code.
D.
The Village 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 Village Police Department may secure the premises.
E.
The closing directed by the judgment shall be for such period as
the court may direct, but in no event shall closing be for a period
of more than a year from the posting of the judgment.
F.
A closing by the Village Police Department shall not constitute an
act of possession, ownership, or control by the Village.
Upon a motion or order to show cause from the Village Board,
and pending 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 defendant(s), 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 Village of
Yorkville, the Village Board may initiate an administrative hearing.
A.
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 lessee or other occupiers of the building.
The notice shall be served in the manner required by New York State
Civil Practice Law and Rules.
B.
Content of notice: The notice shall allege the facts constituting
the public nuisance. The notice shall further contain a time and place
for the hearing to be held before a panel.
C.
Hearing panel: The panel shall consist of a member to be appointed
by the Codes Officer, a member to be appointed by the officer in charge
of the Police Department and a member appointed by the Fire Chief.
Each appointing authority shall be authorized to appoint himself/herself
or any member of his/her staff to the hearing panel.
D.
Hearing: At the time and place designated in the notice, the Village
Board 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, and as to appropriate remedies.
The owner(s) of the building, structure or real property, or their
representatives, shall have the right to examine such evidence and
cross-examine any witnesses presented by the Village Board or his/her
designee. The owners of the building, structure or real property,
or their representatives, may present any relevant evidence and/or
witnesses in their defense. The Village Board, or his/her designee,
shall have the right to examine such evidence and cross-examine any
witnesses presented by the owners of the building, structure or real
property, or their representatives.
E.
Panel's findings and recommendations: Within five business days
of the hearing, the panel shall provide a finding of fact to the Mayor
or to the Mayor's designee. The findings of fact shall state
whether there is prima facie evidence of the existence of a nuisance
property at the building, structure, or real property. The panel shall
further provide a written recommendation of remedies to abate the
public nuisance.
A.
The Mayor or his/her designee, upon receipt of a finding of fact
and recommendation from the panel, shall have the following powers
in furtherance of the abatement of public nuisance:
(1)
To issue a decision and order suspending or revoking, for a period
not to exceed one year, the certificate of occupancy for the building,
structure, or real property.
(2)
To issue a decision and order directing the closing of the building, structure or real property by the Village of Yorkville Police Department, to the extent necessary to abate the nuisance, pursuant to the procedures set forth above in § 99-9.
(3)
In conjunction with, or in lieu of, the foregoing powers, to issue
a decision and order that various measures be taken by the owner,
tenant, and/or lessee of the property to the extent necessary to both
abate the existing nuisance and ensure the prevention of the future
nuisance actions from occurring at or near the property, which shall
include, but not be limited to: requiring the owner to modify and
improve the usage and features of the premises to deter further and
future public nuisance activity; mandating compliance with all applicable
building, housing, and property maintenance codes and regulations
pursuant to this Code and/or state law; and/or directing subsequent
purchasers to comply with the provisions of any issued order of revocation
or suspension for the certificate of occupancy unless or until the
subsequent purchaser appears before the hearing panel to provide an
appropriate plan for the panel to review and make recommendations,
wherein said plans will set forth measures to avoid further incidents
of public nuisance.
B.
The decision and order shall be served upon the owner, tenant and/or lessee of the property in a manner similar to that described in § 99-12A herein.
C.
Nothing within this section shall limit the authority of the Mayor
or the Mayor's designee to take such other and further actions
deemed necessary to abate any existing public nuisance to the extent
necessary to ensure the protection of the health, safety and welfare
of the general public.
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.
