[HISTORY: Adopted by the Town Board of the Town of Cheektowaga as indicated in article histories. Amendments noted where applicable.]
[Adopted 5-9-2023 by L.L. No. 2-2023]
For the purpose of this article, the following words, terms and phrases shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
CHIEF OF POLICE
The Chief of Police of the Cheektowaga Police Department or any person designated by the Chief of Police as his or her designee in the enforcement of this article.
PERSON
Any natural person, association, partnership, company, corporation, or entity capable of owning or using property in the Town of Cheektowaga.
PUBLIC NUISANCE
Includes, but shall not be limited to:
A. 
Any building, structure, or real property used for the purpose of illegal use, possession, or distribution of a controlled substance as defined by the New York State Penal Law.
B. 
Any building, structure, or real property used for the 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 material as defined by the New York State Penal Law and this Code.
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 sale, manufacture, or consumption of alcoholic beverages as defined by the New York State Alcoholic Beverage Control Law.
F. 
Any building, structure, or real property wherein there exists or has occurred a criminal nuisance as defined by the New York State Penal Law.
G. 
Any building, structure, or real property used for purposes of loitering as defined by the New York State Penal Law.
H. 
Any building, structure, or real property wherein an occupant, guest, or business invitee commits criminal activities, including, but not limited to, assault, harassment, or disorderly conduct as defined in the New York State Penal Law.
I. 
Any building, structure, or real property used for purposes of a business, activity, or enterprise which is not licensed as required by federal, state, or local law and/or ordinance.
No owner, operator, manager, agent in control, 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, agent in control, 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 § 172-1 at any building, structure, or real property within a two-year period prior to the commencement of a civil action shall be prima facie evidence of the existence of a public nuisance. A "criminal conviction" shall be defined as the entry of a plea of guilty to 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 two-year period prior to the commencement of a civil action shall be prima facie evidence of the existence of a public nuisance.
A. 
Arrest for any of the activities set forth in the definition of a "public nuisance" in § 172-1 occurring on or near the property.
B. 
Service of an accusatory instrument charging any of the activities set forth in the definition of a "public nuisance" in § 172-1 occurring on or near the property.
C. 
Service of a search warrant on the building, structure, or real property where controlled substances and/or weapons are seized.
D. 
Finding of illegal controlled substances or illegal firearms or weapons on the building, structure, or real property.
E. 
Investigative purchases of illegal controlled substances on the building, structure, or real property by law enforcement agencies or their agents.
F. 
Unlicensed sale or use of cannabis and/or alcohol in violation of New York State or local laws and regulations.
A. 
The Town Attorney may bring and maintain a civil action in the name of the Town to abate a public nuisance and shall commence the civil action by the filing of a summons and complaint in the manner required by the New York State Civil Practice Laws and Rules.
B. 
The summons and complaint or petition 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 having some interest in, the property.
C. 
Any owner, operator, manager, tenant, lessee, or other occupier of the building, structure, or real property may also be named as a defendant.
D. 
The complaint shall allege the facts constituting the public nuisance.
E. 
The complaint shall be accompanied by affidavits for purposes of showing that the owner or his/her agent had notice of the nuisance and had an opportunity to abate the nuisance.
F. 
The venue of the action shall be the Supreme Court, Erie County.
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 at the office of the Town Assessor.
H. 
Defendants other than the building, structure, or real property shall be served with the summons and complaint in the manner required by the New York State Civil Practice Laws and Rules.
I. 
With respect to any action commenced or to be commenced, the Town 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 defendants 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 defendants conducted, maintained, permitted, or allowed the public nuisance after notice to abate had been given by the Town. Upon recovery, such penalty shall be paid into the general Town fund.
A. 
If, upon the trial of an action for a public nuisance or upon a motion for summary judgment, a finding is made that defendants have conducted, maintained, permitted, or allowed a public nuisance, a permanent injunction may be granted.
B. 
A permanent injunction may prohibit defendants from conducting, maintaining, permitting, or allowing the public nuisance.
C. 
A permanent injunction may authorize agents of the Town to remove and correct any conditions in violation of this Code. The judgment may order that the costs of removing and correcting the violations, plus a charge of 50% as compensation to the Town for administering, supervising, and handling such work, shall be charged against defendants and awarded to the Town. The judgment may further order that the costs of removing and correcting the violations, plus a charge of 50% as compensation to the Town 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 Town.
D. 
A judgment ordering a permanent injunction may direct the closing of the building, structure, or real property by the Cheektowaga 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 Civil Practice Laws and Rules and for the actual costs, expenses, and disbursements of the Town in investigating, bringing, and maintaining the action.
A. 
If the judgment directs the closing of the building, structure, or real property, the Cheektowaga Police Department shall serve the judgment upon defendants in the manner required by the Civil Practice Laws and Rules and shall post a copy of the judgment upon one or more of the doors at entrances of the building, structure, or real property, or in another conspicuous place on the building, structure, or real property.
B. 
In addition, the Cheektowaga Police Department shall affix upon one or more of the doors at 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. Mutilation or removal of such posted judgment or notice while it remains in force will be considered a separate violation and shall be punishable as contempt of court.
C. 
After posting, the Cheektowaga 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 Cheektowaga Police Department may secure the premises.
D. 
The closing directed by the judgment shall be for such period as the court may direct, but in no event shall the closing be for a period of more than a year from the posting of the judgment.
E. 
A closing by the Cheektowaga Police Department shall not constitute an act of possession, ownership, or control by the Town.
Upon a motion or order to show cause from the Town Attorney and pending an 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 defendants, 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 Town, the Town Attorney may initiate an administrative process before a hearing panel as stated herein.
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 lessees or other occupiers of the building. The notice shall be served in the manner required by the New York State Civil Practice Laws 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 a hearing to be held before a panel.
C. 
Hearing panel. The panel shall consist of a member to be appointed by the Town's Building Commissioner, a member to be appointed by the Chief of Police, and a member to be appointed by the Town Supervisor who shall preside at such hearing. 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 Town Attorney or his/her designee shall present all relevant evidence as to the existence of a public nuisance at the building, structure, or real property, and as to appropriate remedies. The owners of the building, structure, or real property, or their representatives, shall have the right to cross-examine any witnesses presented by the Town Attorney or his/her designee. The owners of the building, structure, or real property, or their representatives, may present any relevant evidence in their defense. The Town Attorney, or his/her designee, shall have the right to cross-examine any witnesses presented by the owners of the building, structure, or real property, or their representatives.
E. 
The panel's finding and recommendation. Within five days of the hearing, the panel shall provide a finding of fact to the Town Supervisor or the Town Supervisor's designee. The finding of fact shall state whether there is prima facie evidence of the existence of a public nuisance at the building, structure, or real property. The panel shall further provide a written recommendation of remedies to abate the public nuisance.
The Town Supervisor, or the Town Supervisor's designee, upon receipt of a finding of fact and recommendation from the panel, shall have the following powers in regards to the abatement of public nuisances:
A. 
To suspend or revoke, for a period not to exceed one year, the certificate of occupancy for the building, structure, or real property.
B. 
To order the closing of the building, structure, or real property by the Cheektowaga Police Department, to the extent necessary to abate the nuisance, pursuant to the procedures set forth above in § 172-9.
Nothing within this article of the Town Code shall preclude the Town of Cheektowaga, Cheektowaga Police Department, and/or Town of Cheektowaga Code Enforcement Officers from prosecuting and/or enforcing the very same acts of public nuisance against the same owner(s), occupiers, tenants, or lessees of the subject building, structure, or real property under any other applicable section of the Town Code or laws of the State of New York.