Town of New Hartford, NY Property Maintenance

It is hereby declared to be the purpose of this chapter to protect the public safety, health and welfare of, and enhance the environment for, the people of the Town by making it unlawful for property owners and occupants to allow an environmental public nuisance or any public nuisance, as defined in Chapter 86 of the Town of New Hartford Code, to exist.

§ 94-2 Definitions; word usage.

The word "shall" is always mandatory and not merely directory.

As used in this chapter, the following terms shall have the meanings ascribed to them in this section:

AUTHORIZED INDIVIDUAL

The Director of the Department of Codes Enforcement or one of his or her designees.

ENVIRONMENTAL PUBLIC NUISANCE

(1)

Vegetation on private or governmental property that is abandoned, neglected, disregarded or not cut, mown, or otherwise removed and that has attained a height of 10 inches or more;

(2)

Vegetation, trees or woody growth on private property that, due to its proximity to any governmental property, right-of-way or easement, interferes with the public safety or lawful use of the governmental property, right-of-way or easement or that has been allowed to become a health or safety hazard;

(3)

A drainage or stormwater management facility, as defined in Chapter 101 of the Town of New Hartford Code, on private or governmental property, which facility has not been maintained as required by that chapter;

(4)

Property that has accumulated litter or waste products, unless specifically authorized under existing laws and regulations, or that has otherwise been allowed to become a health or safety hazard; or

(5)

Any property that constitutes a threat to the health, safety and general welfare of the residents of the Town of New Hartford or represents a public nuisance as defined in Chapter 86 of the Town of New Hartford Code.

EQUIPMENT

Such equipment as trucks, tractors, bulldozers and similar motor vehicles, and hand-operated equipment such as weed trimmers and similar equipment.

EXCLUDED PROPERTY

(1)

Cultivated land in commercial, domestic, agricultural or horticultural use;

(2)

An existing natural or developed forest that does not create a health or safety hazard;

(3)

Vacant, open lands, fields or wooded areas more than 150 feet from a structure;

(4)

A nature habitat area more than 150 feet from a structure on adjacent property and determined by state and/or local governmental health authorities not to be a health or safety hazard;

(5)

A wetland area designated by the United States Department of Interior, Fish and Wildlife Service, on a National Wetlands Inventory Map and/or determined to be a wetland area by the Department of Public Works.

GOVERNMENTAL PROPERTY

Real estate that is owned, leased, controlled or occupied by the United States, the State of New York, or any political subdivision thereof.

OCCUPANT

The person, firm, partnership, association, corporation, business trust, joint-stock company, unincorporated organization, religious or charitable organization, or entity who is from time to time in possession of, or exercising dominion and control over, the real estate or any house or other structure located thereon. "Occupant" shall include any lessee of the property.

OWNER

The record owner or owners as reflected by the most current records in the County Assessor's office.

PRIVATE PROPERTY

All real estate within the Town except governmental property.

RECIPIENT

The owner or occupant to whom a notice of violation has been directed.

REPEAT VIOLATION

Occurs when a property owner or occupant who has previously been issued a notice of a similar environmental public nuisance for the same property, or who has been found by a hearing or judicial officer to have allowed a similar environmental public nuisance to exist at the same property, allows a subsequent similar environmental public nuisance to exist at that property, within 18 months of the date of the previous notice or finding of violation, whichever is later. A repeat violation does not occur when multiple violations of Subsection (4) of the definition of "environmental public nuisance" are alleged and:

(1)

The owner or occupant can demonstrate that illegal dumping was the cause of the underlying violations; and

(2)

The owner or occupant has made a reasonable effort to prevent illegal dumping from recurring.

§ 94-3 Responsibility for keeping property free from environmental nuisances.

Each department or agency of the United States, the State of New York, or any political subdivision thereof, shall be required to keep governmental property within the Town free from environmental public nuisances.

All owners, occupants, or other persons in control of any private property within the Town shall be required to keep the private property free from environmental nuisances.

§ 94-4 Nuisances prohibited; exception for certain property.

It shall be unlawful for any property owner or occupant to allow an environmental public nuisance to exist. This provision shall not apply to excluded property.

§ 94-5 Complaints; inspections; notice of violation.

Any department of the Town that receives a complaint regarding an environmental public nuisance on any property within the Town shall forward that complaint to the Department of Codes Enforcement, which shall make a record of such complaint. An authorized individual shall visually inspect the property in question. If the authorized individual determines that a violation exists, the Department shall issue a notice of violation to the owner, if the Town intends to proceed under the provisions of § 94-7 of this chapter, and, in the Department's sole discretion, to the occupant. A notice of violation issued for vegetation of a height of 10 inches or more remains in effect for the calendar year in which it is issued if the Town abates the environmental public nuisance under the provisions of § 94-7 of this chapter. After such abatement by the Town, without issuance of further notice, the Town may continue to reinspect the subject property and may abate subsequent violations of vegetation of a height of 10 inches or more and may recover its abatement costs under this chapter.

A notice of violation, as described in Subsection A, shall be issued either by personal service or by first-class United States Mail, postage prepaid. Such notice shall state the nature of the alleged environmental public nuisance and the action deemed necessary to correct the condition and shall fix a date, not sooner than five days from the date of the notice for vegetation of a height of 10 inches or more, and not sooner than 10 days from the date of the notice for all other violations under this chapter, when the property will be reinspected. The notice shall inform the recipient that, if the condition is not corrected upon reinspection, the Town has the right to enter on the property to abate or correct the condition and bill the recipient for costs incurred in so doing. A notice to the occupant at the real estate or to the owner at the address to which property tax statements are sent, as these addresses are shown by the most current records in the County Assessor's office, shall be sufficient notice under this subsection.

§ 94-6 Correction of nuisance; dismissal of fees.

If, upon reinspection, it is determined that the environmental public nuisance has been corrected, the recipient shall not be liable for any charges under § 94-7B(1) of this chapter.

§ 94-7 Abatement by Town; responsibility for costs; lien; civil action.

Abatement by Town. If, upon reinspection, it is determined by the authorized individual that abatement has not occurred, or if vegetation of a height of 10 inches or more is present on a property in the same calendar year in which the Town previously abated a violation of a similar nature on that property, then the Director of the Department of Codes Enforcement, or his or her designee, may enter upon the premises and order that the environmental public nuisance be abated. The recipient shall be liable for the costs of abatement. After abatement is completed, the Department shall, either by personal service or first-class United States Mail, postage prepaid, send the recipient a bill for the costs of abatement.

Responsibility of occupant or owner for costs of abatement.

(1)

Abatement costs. As reimbursement to the Department of Codes Enforcement for its costs, the recipient shall, within 10 days of the date of the bill, pay to the Department the following fees and charges:

(a)

An administrative fee of $250, for such administrative tasks as inspecting the property to determine compliance, determining ownership and preparing and mailing notices;

(b)

Any disposal fees actually incurred to dispose of litter and waste products removed;

(c)

Any other reasonable fees actually incurred in abating an environmental nuisance; and

(d)

Administrative, labor and equipment fees may be changed or established by regulation of the Department of Codes Enforcement as necessary to assure that such fees are adequate to reimburse the Department.

(2)

Unpaid costs become lien upon affected property; perfecting of lien. Upon the failure of the owner who was sent a bill to pay the appropriate fees and charges within the ten-day time period, the Department of Codes Enforcement shall have a lien upon the property on which the environmental public nuisance was abated for the amount billed in accordance with the fee schedule listed above. In addition, there will be a charge of $25 for services necessary in order to perfect such lien. Such liens may be perfected in the following manner:

(a)

By the adoption by the Codes Enforcement, at any regular or special meeting thereof, of an assessment resolution, which shall give the name of the owner or owners, a description of the property on which the environmental public nuisance was abated, and the amount of the charges being assessed;

(b)

The certification of such assessment resolution to the County Auditor, who by special assessment shall cause the amount thereof to be placed on a tax duplicate for the property on which the environmental public nuisance was abated for collection as in the nature of a real property tax; and

(c)

Upon receipt of a written verified request from the purchaser, the Department shall release liens perfected after the recorded date of conveyance of the property. The request must state that the purchaser was not an owner or occupant of the property at the time of the notice of violation or at the time of the Town's abatement without notice of a subsequent violation of a similar nature in a calendar year as provided in this chapter, had no knowledge of the notice of violation and has not been paid by the seller for the costs of abatement billed.

(3)

Civil action to recover costs of abatement. Upon the failure of the recipient who was sent the notice of violation and the bill to pay the appropriate fees and charges within the ten-day period, the Department of Codes Enforcement may bring a civil action in court against such recipient to recover the amount billed, plus reasonable attorney's fees.

§ 94-8 Civil court action or administrative adjudication.

In addition to or in lieu of the foregoing, if, upon inspection, it is determined by the authorized individual that a public nuisance exists, the Department of Codes Enforcement may initiate a civil court action or an administrative adjudication for violation of this chapter against the owner or occupant of the property. A court action shall be initiated in accordance with the Town of New Hartford Code §§ 94-5 and 65-17B.

Regardless of whether later abatement by the recipient has occurred, the Department may initiate an administrative adjudication or a civil court action for any violation of this chapter.

§ 94-9 Penalties for offenses.

Penalties shall be assigned in accordance with the Town of New Hartford Code § 118-80.

§ 94-10 Release of liens.

The Town Board of the Town of New Hartford releases any liens for abatement costs, or judgment liens for any other amount due pursuant to this chapter, if it finds that the benefit to the Town outweighs the detriment caused by such a release. The Board may require parties affected by the release to agree to whatever conditions the board deems appropriate; provided, however, that all conditions shall be set forth in a conditional release of the lien and shall be recorded in the office of the County Recorder. If the Board finds that an affected party has failed to comply substantially with the conditions imposed by the Board, the release shall be void and the lien affecting the property may be reinstated by the Board.

§ 94-11 Severability.

In the event that any section, subsection, clause, phrase, or portion of this chapter is for any reason held illegal, invalid, or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remainder of this chapter. It is the legislative intent of the Board that this chapter would have been adopted if such illegal provision had not been included or any illegal application had not been made.