[HISTORY: Adopted by the Town Board of the
Town of New Hartford 2-13-2008 by L.L. No. 1-2008. Amendments noted where
applicable.]
This chapter shall be known and cited as the
"Town of New Hartford Public Nuisance Abatement Law."
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 marihuana (marijuana) as defined by the New York State
Penal Law.
Any building, structure or real property used
for the purposes of prostitution as defined by the New York State
Penal Law.
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.
Any building, structure or real property used
for purposes of illegal gambling activity as defined in the New York
State 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 New York State 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 New York State Alcohol Beverage Control
Law.
Any building, structure or real property wherein
there exists or has occurred a criminal nuisance as defined by the
New York State Penal Law.
Any building, structure or real property used
for purposes of loitering as defined by the New York State Penal Law.
Any building, structure or real property wherein there exists or has occurred any violation of the Code of the Town of New Hartford, including but not limited to Chapter 56, Dogs And Pets; Chapter 118, Zoning, including the New York State Uniform Fire Prevention and Building Code, 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 said Code of the Town of New Hartford by reference.
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 New York State Penal
Law.
Any building, structure or real property wherein
an occupant, guest or business invitee conducts or performs activities
or behaves in a manner that detrimentally effects the quiet and reasonable
use and enjoyment of adjacent or neighboring property as such conduct
and activities are defined by the New York State Penal Law.
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.
A.
Whenever there is prima facie evidence of a public nuisance at any building, structure or real property within the Town of New Hartford, the Town Attorney shall initiate an administrative review hearing, before bringing a civil action as described in § 86-6 herein.
(1)
Service of notice. A notice of the review hearing
shall be served on one or more 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 New York State Civil Practice Law and Rules.
(2)
Content of notice. The notice shall allege the facts
constituting the public nuisance. The notice shall be accompanied
by affidavit(s) for purposes of showing that the owner or his agent
had notice of the nuisance, had an opportunity to abate the nuisance
and failed to do so. The notice shall further contain a time, date
and place for the review hearing to be held before a panel.
(3)
Hearing panel. The panel shall consist of a member
to be appointed by the chief Code Enforcement Officer, a member to
be appointed by the Chief of Police and a member to be appointed by
the Town Board. Each appointing authority shall be authorized to appoint
himself/herself or any member of his/her staff or department to the
hearing panel.
(4)
Hearing. At the time, date and place designated in
the notice, the Town Attorney 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, the
presumption of knowledge of the subject nuisance(s), proper service
of sufficient notice on one or more owners, the failure or refusal
of the owner(s) of the building, structure or real property to fully
and properly abate said nuisance, despite notice and opportunity to
do so. The owners 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 Town Attorney 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 Town Attorney, 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.
(5)
Panel's finding and recommendation. Within five business
days of the review hearing, the panel shall provide a written decision
to the Town Supervisor for presentment to the Town Board at or before
the next regularly scheduled Town Board meeting.
B.
Within five business days of the review hearing, the
panel shall provide a copy of its decision to the Town Board, Town
Attorney, the Code Enforcement Officer, the Police Chief and to the
owner(s) of the subject building, structure or real property. The
written decision shall state whether or not the panel determined there
is prima facie evidence of the existence of a public nuisance at the
building, structure or real property. If a public nuisance is found
to exist, the panel shall further state in its decision the remedial
measures the owner(s) of the subject building, structure or real property
are to perform or undertake to abate the public nuisance, along with
a specified time frame within which the nuisance is to be abated.
C.
Responsibility for monitoring the abatement of the
identified nuisance shall rest with the Police Department and/or the
Code Enforcement Office. Upon satisfactory abatement of the subject
nuisance within the designated time frame, the Police Chief and/or
the Code Enforcement Officer shall provide written notification of
compliance to the panel, the Town Board, the Town Attorney and the
owner(s) of the building, structure or real property.
D.
In the event of noncompliance with the decision of the panel, the Police Chief and/or the Code Enforcement Officer shall provide written notification of noncompliance to the panel, Town Board, Town Attorney and owner(s) of the building, structure or real property and expressly request the Town Attorney to seek Town Board authority to bring a civil action as described in § 86-6 herein.
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 and serving of a summons and complaint
in the manner required by New York 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 affidavit(s)
for purposes of showing that the owner or his agent had notice of
the nuisance, had opportunity to abate the nuisance and failed to
do so.
F.
The venue of the action shall be in the New York State
Supreme Court ("Supreme Court") located in the County of Oneida where
the public nuisance is being conducted, maintained, permitted or allowed.
G.
In the event personal jurisdiction cannot be obtained
over a proper party, 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.
With respect to any action commenced or to be commenced,
the Town Attorney shall file a notice of pendency pursuant to the
New York State Civil Practice Law and Rules.
If, upon the trial of an action in Supreme Court
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 first 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 as ordered by the Court.
B.
A judgment awarding a permanent injunction shall provide
for all costs and disbursements allowed by the New York State Civil
Practice Law and Rules and for the actual costs, expenses and disbursements
of the Town in investigating, bringing and maintaining the civil action.
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.
Injunctive action taken by the Town Police Department
or Code Office in accordance with any Court order shall not constitute
an act of possession, ownership or control by the Town, and shall
not relieve the owner(s) of his/her/their duties, responsibilities
and legal obligations as relate to the building, structure or real
property.
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.
Nothing within this chapter of the Code of the
Town of New Hartford shall preclude the New Hartford Police and/or
the New Hartford 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.
This Local Law shall become effective immediately
upon its filing in the Office of the Secretary of State in accordance
with § 27 of the Municipal Home Rule Law.
