[HISTORY: Adopted by the Board of Trustees of the Village
of Whitesboro 11-8-2021 by L.L. No. 4-2021.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law was originally adopted as Ch.
207 but was renumbered for organizational purposes.
This chapter shall be entitled "Public Nuisance Abatement Law."
It is hereby declared to be the policy of the Village of Whitesboro
to provide for the proper use of real property to prevent illegal,
unhealthful, hazardous or dangerous conditions. By this chapter, the
Board of Trustees of the Village of Whitesboro seeks to establish
a procedure for the Village of Whitesboro to effectively abate those
dangers which constitute a nuisance to public safety, health, life
and property, and to assess the cost of abatement against those individuals
who knowingly conduct, maintain, allow or permit the existence of
a public nuisance and the real properties on which such activity occurs.
The following words, terms and phrases, when used in this chapter,
shall have the meanings ascribed:
The entry of a plea of guilty or a verdict of guilty for
one or more counts as set forth in an accusatory instrument.
The use or possession of a controlled substance, as defined
by the State Penal Law.
The owner(s) or landlord(s) of a building, structure or real
property, including his or her agent.
Real property or a building or structure, or any part thereof.
Includes, but shall not be limited to:
Any building, structure or real property used for the illegal
use, possession or distribution of a controlled substance, as defined
by the State Penal Law.
Any building, structure or real property used for prostitution
as defined by the State Penal Law.
Any building, structure or real property used for indecent or
obscene performances and/or promotion of obscene material as defined
by the State Penal Law and this Code.
Any building, structure or real property used for illegal gambling
activity as defined by the State Penal Law.
Any building, structure or real property used for the commission
of illegal possession, use or sale of firearms or weapons as defined
by the State Penal Law.
Any building, structure or real property used for the 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 Penal
Law.
Any building, structure or real property used for loitering,
as defined by the State 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 Penal Law.
Any building, structure or real property wherein there exists or has occurred any violation of this Code, including, but not limited to, Chapter 295, Zoning, and the 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.
The above definition of a public nuisance is not intended and
shall not be interpreted to cover or include requests for police,
medical, fire or ambulance services in the face of a threat or a perceived
threat to person or property, or any request for the assistance of
the police to enforce a court order, including, but not limited to,
circumstances in which the request for police, medical, fire or ambulance
services or public service intervention arises from an incident relating
to intimate partner violence, sexual assault, child abuse or stalking
against any person at or near the premises.
The lessee or occupant of a building, structure or real property.
For purposes of this chapter, the term "tenant" shall include an occupant
of one or more rooms in a rooming house or a residence, not including
a transient occupant, of one or more rooms in a hotel for 30 consecutive
days or longer.
No owner, operator, manager or tenant of premises shall knowingly
conduct, maintain, permit or allow the existence of a public nuisance
at the premises.
A.
The following shall constitute a presumption of a public nuisance:
(1)
The existence of two or more criminal convictions for any of the
activities set forth in the definition of a public nuisance in this
chapter at any premises within the two-year period prior to the commencement
of a civil action and/or administrative hearing shall be prima facie
evidence of the existence of a public nuisance.
(2)
The existence of two or more incidents of the following activities
at any premises within the one-year period prior to the commencement
of a civil action and/or administrative hearing shall be prima facie
evidence of the existence of a public nuisance:
(a)
Service of a search warrant on the premises where controlled
substances and/or weapons are seized.
(b)
Finding of illegal controlled substances or illegal firearms
or weapons on the premises.
(c)
Investigative purchases of illegal controlled substances on
the premises by law enforcement agencies or their agents.
B.
Once there exists the presumption of a public nuisance, as set forth in Subsection A above, the Village shall serve, by means of first-class mail or personal service, written notice upon the owner, as set forth in the last filed tax roll, advising of such presumption. Such notice shall set forth the alleged facts constituting the public nuisance and shall inform the owner of the Village's intent to pursue action under either § 181-5 or § 181-11.
C.
Upon notification from the Village of Whitesboro of the presumption of a public nuisance, as set forth in Subsection B above, good faith efforts, commenced by the owner in a timely manner to eradicate such public nuisance, shall preclude further enforcement action by the Village of Whitesboro, unless and until such good faith efforts cease or activities constituting a public nuisance resume. In the event an owner's good faith efforts cease or public nuisance activity resumes, the Village of Whitesboro shall notify the owner, in the manner set forth in Subsection B above, of its intent to proceed under either § 181-5 or § 181-11.
A.
The Village Attorney may bring and maintain a civil action in the
name of the Village to abate a public nuisance and shall commence
a civil action by filing a summons and complaint in the manner required
by the New York State Civil Practice Laws and Rules.
B.
The summons and complaint shall name as defendant(s) at least one
of the owners of some portion of or of some interest in the property,
as set forth in the last filed tax roll, and shall describe the owner's
premises by tax map number and/or street address.
C.
The summons and complaint may also name as defendant any owner, operator,
manager or tenant of the premises.
D.
The complaint shall allege the facts constituting the public nuisance.
E.
The complaint shall be accompanied by an affidavit, to affirm that
the owner or his agent had notice of the public nuisance and an opportunity
to abate the public nuisance.
F.
In rem jurisdiction over the premises shall be completed by affixing
the summons to the premises 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 as determined by
the last filed tax rolls.
G.
Defendant(s), other than the record property owner of the premises,
shall be served with the summons and complaint in the manner required
by the New York State Civil Practice Laws and Rules.
H.
With respect to any action commenced or to be commenced, the Village
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 defendant(s)
have conducted, maintained, permitted or allowed a public nuisance,
a penalty may be awarded in an amount not to exceed $1,000 for each
day it is found that the defendant(s) conducted, maintained, permitted
or allowed the public nuisance after notice to abate had been given
by the Village.
A.
If, upon the trial of a civil action for a public nuisance or upon
a motion for summary judgment, a finding is made that 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) from conducting,
maintaining, permitting or allowing the public nuisance.
C.
A permanent injunction may authorize agents of the Village to remove
and correct any condition(s) in violation of this Code. The judgment
may further order that the cost of removing and correcting the violation(s),
plus a charge of 50% as compensation to the Village for administration
and supervision expenses, be charged against defendant(s) and awarded
to the Village. The judgment may further order that the cost of removing
and correcting the violation(s), plus the charge of 50% as compensation
to the Village for administration and supervision expenses, shall
constitute a lien against the real property and shall be collected
in the same manner as 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 premises by the Whitesboro Police Department, to the extent
necessary to abate the public nuisance.
E.
A judgment awarding a permanent injunction shall provide for all
costs and disbursements allowed by the New York State Civil Practice
Laws and Rules and for the actual costs, expenses and disbursements
of the Village in investigating, bringing and maintaining the action.
A.
If the judgment of a civil action directs the closing of the premises,
the Whitesboro Police Department shall serve the judgment upon defendant(s)
in the manner required by New York State Civil Practice Laws and Rules
and shall post a copy of the judgment upon one or more of the doors
at entrances of the premises or in a conspicuous place on the premises.
B.
In addition, the Whitesboro Police Department shall affix upon one
or more of the doors at entrances of the premises or in a conspicuous
place on the premises, 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 the posted judgment or notice, while it
remains enforced, will be considered a separate violation and shall
be punishable pursuant to § 55.10(3)(a) of the State Penal
Law.
D.
The Whitesboro Police Department may then command all persons present
in the premises to vacate the property. After the premises are vacated,
the Whitesboro Police Department may secure the premises.
E.
The closing directed by the judgment shall be for a period as the
Court may direct, but in no event shall the closing period exceed
one year from the posting of the judgment.
F.
A closing by the Whitesboro 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 Attorney
and pending an action for a permanent injunction, a preliminary injunction
enjoining the public nuisance may be granted for any of the relief
obtained by a permanent injunction.
Pending a motion or order to show for a preliminary injunction,
a temporary restraining order or temporary closing order may be granted,
without notice to defendant(s), for any of the relief obtainable by
a permanent injunction.
As an alternative or in addition to commencing a civil action, whenever there exists a presumption of a public nuisance, as set forth in § 181-4 above, at any premises within the Village, the Village Attorney may, at the direction of the Board of Trustees of the Village of Whitesboro, initiate an administrative hearing in accordance with the following procedure:
A.
A notice of the hearing shall be served on all owners of the premises
as determined by the last filed tax roll and may also be served on
any known operator, manager and/or tenant of the premises. The notice
shall be served in the manner required by the New York State Civil
Practice Laws and Rules.
B.
The notice shall allege the facts constituting the public nuisance,
shall contain a time and place for a hearing to be held before a panel,
and shall advise the owner(s), and any known operator, manager and/or
tenant, of their right to appear represented by legal counsel.
C.
The hearing panel shall consist of a member to be appointed by the
Code Enforcement Officer, a member to be appointed by the Chief of
Police and a member to be appointed by the Fire Chief. Each appointing
authority shall be authorized to appoint him-/herself or any member
of his/her staff to the hearing panel.
D.
At the time and place designated in the notice, the Village Attorney
shall present all relevant evidence and/or witnesses demonstrating
the existence of a public nuisance at the premises and as to appropriate
remedies. The owner, operator, manager and/or tenant of the premises
shall have the right to examine such evidence and shall cross-examine
any witnesses presented. The owner, operator, manager and/or tenant
of the premises may present any relevant evidence and/or witnesses
as a defense. The Village Attorney shall have the right to examine
such evidence and cross-examine any witnesses presented by the owner,
operator, manager and/or tenant of the premises.
E.
Within five business days of the hearing, the panel shall provide
a finding of fact to the Mayor. The finding of fact shall state whether
there is prima facie evidence of the existence of a public nuisance
at the premises. The panel shall further provide a written recommendation
of remedies to abate the public nuisance.
A.
To abate a public nuisance, the Mayor, upon receipt of a finding
of fact and recommendation from the panel, shall have the power:
(1)
To issue a decision and order suspending the certificate of occupancy
for the premises for a period not to exceed one year.
(2)
To issue a decision and order directing the closing of the premises by the Whitesboro Police Department, to the extent necessary to abate the public nuisance, pursuant to the procedures set forth in § 181-8.
(3)
In conjunction with, or in lieu of, the foregoing powers, to issue
a decision and order for various measures to be taken by the owner,
operator, manager and/or tenant of the premises, to the extent necessary
to abate the existing public nuisance and to ensure the prevention
of future public nuisance actions from occurring at or near the premises,
which shall include, but shall not be limited to:
(a)
Requiring the owner, operator, manager and/or tenant to modify
and improve the premises to deter further and future public nuisance
activity; and/or
(b)
Directing subsequent purchaser(s) to comply with the provisions
of any orders of suspension for the certificate of occupancy, unless
or until the subsequent purchaser appears before the hearing panel
with an appropriate plan to avoid further incidents of public nuisance
for the panel to review and make recommendations.
B.
The decision and order shall be served upon the owner, operator, manager and/or tenant of the premises in a manner similar to that described in § 181-11A herein.
C.
Nothing within this section shall limit the authority of the Mayor
to take such other and further actions deemed necessary to abate any
existing public nuisances 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.
