[HISTORY: Adopted by the Board of Trustees
of the Village of Horseheads 10-11-2022 by L.L. No. 5-2022.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law also repealed former Ch. 109,
Buildings, Unsafe, adopted 6-23-1977 as L.L. No. 10-1977.
This chapter is adopted pursuant to the authority granted the
Village of Horseheads in § 10 of the Municipal Home Rule
Law.
The provisions of this chapter shall be in addition to, and
in furtherance of, the New York State Uniform Fire Prevention and
Building Code.
This chapter shall be known as the "Village of Horseheads Unsafe
Buildings Law."
By adoption of this chapter, the Village of Horseheads declares its intent to regulate and control unsafe, abandoned, hazardous, dilapidated, or derelict buildings and structures (herein "unsafe buildings," as defined in § 109-6, below). The Village of Horseheads hereby declares that a clean, wholesome, and attractive environment is of vital importance to the continued general welfare of its citizens, and that unsafe buildings can constitute a hazard to property and persons and can be a public nuisance. Unsafe buildings may be highly flammable and sometimes explosive. Unsafe buildings can constitute attractive nuisances to children and certain adults. The presence of unsafe buildings is injurious to the public welfare, unsightly, and tends to detract from the value of surrounding properties.
This chapter, Unsafe Buildings, shall replace and supersede
any and all prior existing unsafe buildings ordinances or local laws
of the Village of Horseheads, if any, including Local Law No. 10 of
1977, except that this chapter shall not repeal any building codes
or regulations that may address building safety issues.
For the purpose of this chapter, the following words and phrases
shall have the meaning ascribed to them in this section.
The Village Code Enforcement Officer or any person appointed
by the Village Board of the Village of Horseheads to represent the
Village of Horseheads in particular matters pertaining to this chapter.
A determination by the Code Enforcement Officer of a condition
in a hazardous building that presents an imminent or immediate danger
to the life, health, or safety of any person.
Any unsafe building that presents or poses an imminent or
immediate danger of failure or collapse, or an imminent or immediate
danger to the life, health, safety or welfare of any person. A single
building or structure can be both a hazardous building and an unsafe
building, and all hazardous buildings are and shall be deemed unsafe
buildings.
Any person or entity that owns or holds any interest in fee
to real property as shown by the records of the County Tax Assessor.
An owner's mailing or residence address as shown by
the records of the County Tax Assessor.
Any individual, firm, partnership, association, corporation,
company, or entity or organization of any kind.
Any building or structure or excavation made below the surface
of the ground which:
Is abandoned, dilapidated, derelict, structurally unsafe, or
unsanitary; or
Constitutes a fire hazard; or
Is not provided with sufficient means of egress or exits in
the case of a fire; or
Is otherwise dangerous to human life; or
Which constitutes a hazard to safety or health by reason of
inadequate maintenance, infestation, dilapidation, obsolescence, or
abandonment.
Unless otherwise specified, the Village Board of the Village
of Horseheads, all elected officials, all employees, all committees
and committee members, the Code Enforcement Officer, the Village Justice
Courts, its judges, clerks and employees, and all agents of the Village.
All unsafe buildings are hereby declared to be a public nuisance,
illegal and shall be abated by repair, vacated or demolition in accordance
with the provisions of this chapter.
A.
The Code Enforcement Officer shall inspect or cause to be inspected
any building about which complaints are filed by any person to the
effect that a building is a hazardous and/or unsafe building or may
be in violation of this chapter.
B.
The Code Enforcement Officer shall have the authority to order the
immediate evacuation of any unsafe building. The Code Enforcement
Officer shall order the immediate evacuation of any hazardous building.
Whenever the Code Enforcement Officer shall determine that any
building or structure, or portion thereof, is an unsafe building,
the Code Enforcement Officer shall cause service of notice upon the
owner either personally or by registered mail to the owner's
address. If service is made by registered mail, the Code Enforcement
Officer shall cause the posting of a copy of such notice on the premises.
Such notice shall be called and labeled as a "Defective Conditions
Notice" (herein abbreviated as DCN). Such DCN shall contain:
A.
A brief description of the premises, and for this purpose a street
address is sufficient; and
B.
A statement of the particulars concerning the Code Enforcement Officer's
determination that the building or structure is an unsafe building;
and
C.
An order of the Code Enforcement Officer requiring the unsafe building
to be made safe and secure, repaired or removed; and
D.
The time within which the owner shall commence the repair or removal
of such unsafe building; and
E.
The time within which the owner shall complete the repair or removal
of such unsafe building; and
F.
A date by which the owner may file written objection(s) to the notice
which date shall be within days of the date of issuance of the DCN.
Such objection(s) shall be deemed to be a request for a hearing; and
G.
A time and place for a hearing, if an objection is filed, to be held
30 days after the objection is filed, before the Village Board; and
H.
If a hazardous building, an order of the Code Enforcement Officer
to all persons requiring that they immediately vacate the hazardous
building.
In the event of an emergency, the hearing date may be accelerated
by order of the Village Board, which such order may be granted ex
parte upon a showing of good cause by any party. At any appeal or
hearing under this chapter (except those arising under Article 78
of the Civil Practice Law and Rules), the initial burden of proof
shall be upon the Village of Horseheads, which shall be required to
show by a fair preponderance of the evidence that the building or
structure is an unsafe building, a hazardous building, or that an
emergency exists. If that burden is met, the owner, or other aggrieved
person, may rebut the Village of Horseheads' showing by the introduction
of evidence that establishes by a fair preponderance of the evidence
that the building or structure is not an unsafe building, hazardous
building, or that an emergency does not exist. At any criminal hearing
or trial, the Village of Horseheads shall have the burden of proof
to show, beyond a reasonable doubt, that any person charged with a
violation of this chapter violated any one or more terms or requirements
of this chapter.
A.
If the Code Enforcement Officer finds that an unsafe building is
a hazardous building, the Code Enforcement Officer shall post a copy
of the DCN upon such hazardous building. No hazardous building may
be occupied, nor may a hazardous building be reoccupied until each
and all unsafe and hazardous conditions are remediated. In addition
to posting the DCN, the Code Enforcement Officer shall cause the following
to be posted at each entrance to a hazardous building that is found
to pose an imminent or immediate danger:
CONDEMNED: THIS BUILDING IS HAZARDOUS AND UNSAFE. ENTRY, USE,
AND OCCUPANCY OF THIS BUILDING HAVE BEEN PROHIBITED BY THE VILLAGE
OF HORSEHEADS.
B.
Such notice shall remain posted until all required repairs are made
or demolition of the hazardous building is completed. It shall be
unlawful for any person to remove such notice without written permission
of the Code Enforcement Officer, or for any person to enter a hazardous
building except for the purpose of evaluating the building condition,
making the required repairs, or to demolish such hazardous building.
Further, if the Code Enforcement Officer determines that an emergency
exists in relation to such hazardous building, the Code Enforcement
Officer is also hereby empowered, but not required, to:
(1)
Enter any such premises for the purposes of inspection and investigation;
(2)
Promptly cause any hazardous building or portion thereof to be made
safe or removed;
(3)
Order the vacation of adjacent structures; and
(4)
Protect the public by appropriate barricades or such other means
as may be necessary, including the closure of public or private ways.
The DCN may also be filed in the office of the County Clerk,
which notice shall be filed by the Village of Horseheads in the same
manner as a notice of pendency pursuant to Article 65 of the Civil
Practice Law and Rules (herein CPLR). The DCN shall have the same
effect as a notice of pendency as therein provided, except as otherwise
provided in this chapter. A DCN so filed shall be effective for a
period of one year from the date of filing; provided, however, that
it may be vacated upon the order of a Judge or Justice of a court
of record or upon the consent of the Village Board of the Village
of Horseheads. The County Clerk shall mark such notice and any record
or docket thereof as canceled of record upon the presentation and
filing of such consent or of a certified copy of such order canceling
the DCN.
Upon notification given by the Code Enforcement Officer to the
Village Manager that an owner has failed or refuses to repair or demolish
any unsafe building, the Village Manager may cause the repair or removal
of the unsafe building. After the work has been completed, the Village
Manager shall file in the office of the Village Clerk Treasurer a
verified statement (herein, the "verified statement") of all the direct
costs of the same, together with a 40% surcharge as compensation to
the Village of Horseheads for administering, supervising and handling
said work in accord with the provisions of this chapter. Any person
aggrieved by the filing of a verified statement may file an objection
thereto and request a hearing to determine the actual or reasonable
costs of such removal or repair by the Village of Horseheads. Such
objection must be filed within 10 days of the filing of the verified
statement by the Village Manager.
Upon receipt of the verified statement prepared pursuant to § 109-13, the Village Clerk Treasurer:
A.
Shall enter the same in the records of the Village Clerk Treasurer
as a lien against the premises; and
B.
Shall add the same to the next assessment roll of general Village
taxes; and
C.
Shall collect and enforce the assessment in the same manner, by the
same proceedings, at the same time, and under the same penalties as
the general Village tax, and as a part thereof.
Notwithstanding any provision herein to the contrary, the Village
of Horseheads may, at its election, institute suit against the owner
of said premises for the direct costs and the 40% surcharge, and enter
judgment thereupon against any owner. The imposition and collection
of any fine or penalty hereinafter prescribed shall not bar the right
of the Village of Horseheads to otherwise collect the cost of the
removal or repair of any unsafe building as herein prescribed.
A transfer of title (or any interests therein) by the owner
shall be no defense to any proceeding under this chapter. No assignment
of any obligations imposed by this chapter shall be a defense to any
proceeding under this chapter.
Any person ordered to repair, remove, or vacate any unsafe building
who disagrees with the DCN (or other determination of the Code Enforcement
Officer) may appeal to the Village Board of the Village of Horseheads
by filing a written statement setting forth the reasons for such appeal.
Such appeal must be filed within 10 days of service of the DCN (or
other order of the Code Enforcement Officer) upon such person. Upon
receipt of such appeal, the Village Board of the Village of Horseheads
shall hold a hearing within 30 days and, after a review of all evidence,
shall affirm, modify or annul the action of the Code Enforcement Officer.
Before the demolition or removal of any unsafe building is commenced,
a demolition permit application (herein DPA) shall be prepared by
the owner, or the owner's architect, builder or contractor, on
forms available from the Code Enforcement Officer. A processing fee
as set by resolution of the Village Board from time to time must accompany
each DPA. All information requested in such form must be provided
before the DPA is deemed completed. The DPA shall be filed with the
Code Enforcement Officer at least 20 working days before the proposed
demolition or removal, except in the case of hazardous buildings,
which shall require that a DPA be filed as soon as possible. If a
DPA is approved by the Code Enforcement Officer, the Code Enforcement
Officer shall issue a demolition and removal permit (herein DRP).
All work must be completed within the time stated upon the DRP. All
DRPs are valid only until the date stated on the face of the DRP.
Upon expiration of a DRP prior to the completion of the demolition
or removal of an unsafe building, a new DPA shall be filed, and a
new DRP must be issued before the continuation of any work. No DPA
or DRP shall be required for single-story nonoccupied structures consisting
of less than 100 square feet of total floor space, such as sheds.
Before any DRP is issued and before making any repairs pursuant
to a DCN, and when required by the Code Enforcement Officer, a performance
bond, money, or another undertaking in a form approved by the Code
Enforcement Officer, in an amount sufficient to complete all proposed
or necessary operations, shall be required. The determination as to
whether to require any undertaking, and in what amount or form, shall
be at the sole discretion of the Code Enforcement Officer, without
recourse. The Code Enforcement Officer may require additional sums
to be posted, paid, or bonded as may be necessary from time to time
to ensure adequate financial security for the completion of the work.
Before any DRP is issued and before making any repairs pursuant
to a DCN, and prior to the commencement of any work thereunder, the
owner and all person(s) engaged in the work of demolition or removal
shall file proof of insurance for all operations with the Code Enforcement
Officer, including proof of public liability, personal injury, and
property damage insurance or coverages, which insurance shall also
contain general all-risk coverage.
A.
Such insurance policy or policies shall provide:
(1)
For a minimum coverage of not less than $1,000,000 per person per
incident; and
(2)
That the Village of Horseheads be named an additional primary insured;
and
(3)
That the Village of Horseheads be required to be notified at least
30 days prior to any change of coverage, change in endorsements, or
cancellation of coverage.
B.
All insurance coverages and policies shall be subject to the approval
of the Code Enforcement Officer prior to the issuance of any DRP.
The owner and each person working upon any demolition or removal
work, including all persons acting in furtherance of the performance
of any work pursuant to or under any DRP, shall indemnify and keep
and save harmless the Village of Horseheads from and against any and
all losses, costs, damages, expenses, judgments, claims, or liabilities
of any kind whatsoever which may accrue against or be charged to or
recovered from the Village of Horseheads from or by reason of or on
account of accidents to persons or damage to property during any operations
and from or by reason of or on account of any thing done under or
by virtue of any DRP granted for any such operations. This indemnity
provision shall be construed and applied to the maximum extent permitted
by law.
In demolishing any building or structure, or any part thereof,
story after story shall be completely removed in a sequential manner
commencing with the roof, and then the top floor, and moving to the
next lower floor, etc., unless such building is demolished in a single
phase through the lawful and properly permitted use of explosive or
implosive devices. No material shall be placed upon a floor of any
building in the course of demolition, and the bricks, timbers and
other parts of each story shall be lowered to the ground immediately
upon displacement. All material to be removed shall be properly wet
to lay the dust incident to its removal. All demolition and removal
work shall be undertaken with a diligent regard to and a diligent
application of all applicable safety standards, rules, laws and regulations,
in accord with the safest practice and customs in such industry.
A.
All provisions of New York State law generally applicable to misdemeanors
shall apply to any criminal proceeding brought under this chapter,
and any misdemeanor shall be deemed an unclassified misdemeanor. For
purposes of this chapter, the Village's justice court is hereby
vested and imbued with jurisdiction to issue administrative and other
warrants in compliance with the New York Criminal Procedure Law and
administrative codes of the State of New York, as well as to hear
and adjudicate allegations relating to the criminal or civil violation
of this chapter and thereafter, if appropriate, impose any fine, penalty,
or sanction.
B.
Any person or entity that violates any of the provisions of this
chapter shall be guilty of a criminal violation and subject to a fine
of not more than $500, or subject to a civil penalty of not more than
$1,000 be recovered by the Village in a civil action. Each week that
any noncompliance or violation continues is and may be charged as
a separate violation.
C.
The application or pursuit of any civil or criminal fine, sanction,
or penalty shall not preclude the pursuit of any other lawful remedy
by the Village, including, but not limited to, the right to seek equitable
relief.
(1)
Whenever the Village shall believe from evidence satisfactory to
it that there is a violation of this chapter, the Village may bring
an action to enjoin and restrain the continuation of such violation
and in any such action:
(2)
In such action, the court may also award any damages or other relief
requested, including declaring the rights and interests of any parties
and imposing any civil penalties. The remedies provided by this chapter
shall not be in lieu of, and shall be in addition to, any other right
or remedy available to the Village, whether sounding in enforcement
or otherwise.
In addition to the provided fines and/or penalties stated in § 109-23 above, the Village of Horseheads may also commence and maintain an action or proceeding in the name of the Village of Horseheads in a court of competent jurisdiction to compel compliance with or restrain by injunction (or other equitable relief) the violation of any provision of this chapter.
A.
Where the Village of Horseheads finds that due to special circumstances
of the particular case a waiver of certain provisions of this chapter
is justified, then a waiver may be granted by the Code Enforcement
Officer. No waiver shall be granted, however, unless the Village Board
of the Village of Horseheads finds, and records in its minutes, that:
(1)
Granting the waiver would be keeping with the intent and spirit of
this chapter, and is in the best interests of the community; and
(2)
There are special circumstances involved in the particular case,
and such circumstances are recited in the minutes; and
(3)
Denying the waiver would result in undue hardship to the applicant,
provided that such hardship has not been self-imposed; and
(4)
The waiver is to the minimum degree necessary and does not interfere
with the purposes of this chapter.
B.
Additionally, the Village Board of the Village of Horseheads and/or
the Code Enforcement Officer may state terms and conditions applicable
to the waiver, including conditions precedent to the effectiveness
or validity of the waiver. The Code Enforcement Officer may revoke
a waiver upon reasonable cause should the owner fail to comply with
any nonwaived provision of this chapter, or fail to comply with the
terms and conditions stated in any granted waiver. If the owner believes
the revocation was improper, the owner may file an objection thereto
within five days of such revocation, whereupon, a hearing shall be
held by the Village Board of the Village of Horseheads within 30 days,
and whereat a determination will be made to affirm, modify, reverse,
or annul the decision of the Code Enforcement Officer. Notice of the
hearing shall be made in the Village of Horseheads' designated
official newspaper at least five days prior to the date thereof. The
person holding the waiver (the "waiver holder") shall be notified
of the hearing by certified mail at least five days prior to the hearing.
At the hearing, the Village Board of the Village of Horseheads shall
hear the waiver holder and all other persons wishing to be heard concerning
the revocation of the waiver.
The Village Manager is authorized, upon passage of a resolution
by the Village Board, to file with the State Superintendent of Insurance
a notice of intention to claim against the proceeds of any fire insurance
policy upon real property (except one- and two-family residential
structures) located within the Village, upon which there are liens
for special ad valorem levies, taxes, special assessments and municipal
charges and which have remained undischarged of a period of one or
more years. The proceeds against which a claim has been filed shall
be released or returned to the insured, provided that the insured
agrees, in writing, with the Village, upon such terms and conditions
to guarantee performance of the agreement as the Village Attorney
may deem reasonable and necessary, to restore property damage by fire
to at least the same condition it was in prior to the time that the
Villages' lien arose. The powers granted in this section shall
be in addition to, and not in substitution for; all powers, rights,
privileges and authority now existing in the Village or hereafter
conferred upon it by any provision of law.
The Village of Horseheads shall not be liable or responsible
for any injury to persons or damage to property due to its actions,
or failures to act, under or pursuant to this chapter, unless it be
proven to a reasonable degree of certainty that such injury or damage
was solely caused by a willful or intentional act of the Village of
Horseheads.
If any clause, sentence, paragraph, or section of this chapter
shall be adjudged by any court of competent jurisdiction to be invalid,
such judgment shall not affect, impair or invalidate the remainder
thereof, but shall be confined in its operation to the clause, sentence,
paragraph, section, or article thereof directly involved in the controversy
in which such judgment shall have been rendered.
This chapter shall repeal and replace Local Law No. 10 of 1977, the existing Chapter 109 of the Village of Horseheads' Code, and shall supersede all prior local laws, ordinances, rules and regulations relative to the repair or removal of unsafe buildings and collapsed structures within the Village of Horseheads and they shall be, upon the effective date of this ordinance, null and void.
It is hereby determined, pursuant to the provision of the State
Environmental Quality Review Act, 8 NYECL, § 0101 et seq.
and its implementing regulations, Part 617 Title 6 NYCRR, and that
the adoption of the local law is a Type II action within the meaning
of § 617.5(c)(25), (26) and (33) of 6 NYCRR, and accordingly,
is of a class of actions which do not have a significant effect on
the environment: no further review is required.
This chapter shall take effect upon its being fully filed in
the office of the Secretary of State of the State of New York as provided
in § 27 of the Municipal Home Rule Law.
