[HISTORY: Adopted by the Board of Trustees
of the Village of South Glens Falls 9-7-2005 by L.L. No. 3-2005. Amendments noted where
applicable.]
A.
It shall be unlawful for any structure to be employed
or used as a specified public nuisance within the Village of South
Glens Falls. If a structure is found to be used or employed in violation
of this chapter, it is subject to closure for a period of up to one
year, or permanent or temporary enjoinment.
B.
It is unlawful for any person to employ, use, maintain
or allow the employment, use or maintenance of structures under his/her
ownership and/or control as a specified public nuisance. If a person
is found in violation of this subsection, he/she is subject to civil
penalties of up to $500 per day for each day the property is so employed,
used or maintained, and/or eviction from the property, and/or any
other civil penalty pursuant to law.
As used in this chapter, the following terms
have the meanings given them in this section:
Includes any person designated by the Village of South Glens
Falls Chief of Police as his or her designee in the enforcement of
this chapter.
Any person, agent, firm, corporation, association or partnership,
including a mortgagee in possession in who is vested:
Any natural person, association, partnership or corporation
capable of owning or using property in the Village of South Glens
Falls.
SPECIFIED PUBLIC NUISANCE --
Any building, building accessory, structure,
lot or yard used for the purpose of illegal drug use, possession,
distribution and/or loitering for the purpose of unlawfully using
or possessing controlled substances as defined in Articles 220 and
221 and § 240.36 of the Penal Law.
Any building, building accessory, structure,
lot or yard used for the purpose of prostitution as defined in § 230.00
of the Penal Law and loitering for the purposes set forth in § 240.37
of the Penal Law.
Any building, building accessory, structure,
lot or yard used for the purpose of loitering as defined in § 240.35
of the Penal Law.
Any building, building accessory, structure,
lot or yard used for the purpose of a business, activity or enterprise
which is not licensed as required by federal, state or local law and/or
ordinance.
Any building, building accessory, structure,
lot or yard used for the purpose of unlawful activities described
in the Alcoholic Beverage Control Law.
Any building, building accessory, structure,
lot or yard used for the purpose of gambling activities described
in Article 225 of the Penal Law.
Any building, building accessory, structure,
lot or yard wherein there exists or is occurring a violation of this
Code, and such violation constitutes a danger to the health or safety
of occupants or members of the public as it may pertain to an unsafe
condition, disease, vermin or fire prevention.
Any building, building accessory, structure,
lot or yard wherein there is or has occurred a criminal nuisance as
defined in §§ 240.45 and 240.46 of the Penal Law.
Any building, building accessory, structure,
lot or yard wherein there exists or is occurring a violation of the
provisions of §§ 165.40, 164.45, 165.50 (criminal possession
of stolen property), 170.65 (forgery of vehicle identification number),
170.70 (illegal possession of vehicle identification number), 175.10
(falsifying business receipts) of the Penal Law, and of § 415-a
(vehicle dismantlers) of the Vehicle and Traffic Law.
Any building, building accessory, structure,
lot or yard used for the purpose of, or to aid in, the commission
of a violation of Article 265 of the Penal Law (firearms and dangerous
weapons).
Any building, building accessory, structure,
lot or yard used for the purpose of animal fighting, or cruelty to
animals as defined in the Agriculture and Markets Law of the State
of New York.
Any building, building accessory, structure,
lot or yard used for the purpose of welfare fraud as or food stamp
program fraud as defined in the Social Services Law of the State of
New York.
Any building, building accessory, structure,
let or yard wherein an occupant, guest, or invitee commits criminal
activities involving assault, gang assault, harassment, or disorderly
conduct, as said criminal activities are defined in the New York State
Penal Law.
Any building, building accessory, structure,
lot or yard used for the purpose of indecency, obscene performances,
promotion of obscene material, or the sexual performance by a child,
as said criminal activities are defined in the New York State Penal
Law.
Conduct or evidence of conduct prohibited under this chapter.
A violation does not require criminal prosecution and conviction but
only proof by a preponderance of evidence that the prohibited conduct
is occurring or has occurred. Evidence of prohibited conduct may include,
but is not limited to, police reports, investigative reports, execution
of search warrants, results of police surveillance, arrest and/or
conviction of local and state and federal laws, activities associated
with trafficking of controlled substances on or near the property
and/or increased volume of traffic associated with the property.
The Village Counsel may commence and maintain
a civil proceeding in the name cf the Village of South Glens Falls
for the following types of relief:
A.
Eviction.
(1)
The Village Counsel or any duly authorized enforcement
agency of the state or of a subdivision thereof, under duty to enforce
the provisions of the Penal Law or of any state or local law, ordinance,
code, rule or regulation relating to buildings may commence special
proceedings to evict a tenant or occupant from leased premises upon
the ground that the premises, or any part thereof, have been used
as a public nuisance as defined in this chapter.
(2)
The procedure applicable to summary proceedings to
recover possession of real property under Article 7 of the New York
State Real Property Actions and Proceedings Law shall be applicable
to any proceeding contemplating eviction brought under this chapter.
B.
When the Chief of Police or Code Enforcement Officer
believes that a structure has been or is being used or maintained
in violation of this chapter, the Village Counsel may commence judicial
proceedings to enjoin the property or cause the closure of the structure,
including the imposition of civil penalties against any or all of
its owner(s).
(1)
The Chief of Police or Code Enforcement Officer shall
notify the owner(s) of record, in writing, that the structure has
been determined to be specified public nuisance. The notice shall
contain the following:
(a)
The street address and a description sufficient for
identification of the premises on which the structure is located.
(b)
A statement that the Chief of Police or Code Enforcement
Officer has found the structure to be in violation of this chapter,
providing a brief statement of the facts upon which the proceedings
are based.
(2)
A copy of the notice shall be served on the owner
and/or his or her agent, if known, at least 10 days prior to the commencement
of any judicial action by the Village. Service shall be made either
personally or by mailing a copy of the notice by both first class
mail and certified mail, postage prepaid, return receipt requested,
to each person at his or her address as it appears on the last assessment
roll as well as on the last instrument of conveyance as recorded in
the county where the structure is located and as may be otherwise
known to the Chief of Police or Code Enforcement Officer. If no address
appears or is known to the Chief of Police or Code Enforcement Officer,
then a copy shall be mailed first class, postage prepaid, addressed
to such person at the address of the structure believed to be a specified
public nuisance, and attached conspicuously to the structure.
(3)
A copy of the notice shall be served on the occupant
of the structure if that person is different than the owner and shall
occur not less than five days prior to the commencement of any judicial
proceeding, and be made either personally or by mailing a copy of
the notice by first class mail, postage prepaid, to him/her at the
structure address.
C.
Concurrent with the notification procedures set forth
above, the Chief of Police or Code Enforcement Officer shall send
a copy of the notice as well as any other documentation which supports
the closure of the structure and the imposition of civil penalties
to the Mayor. The Mayor may then authorize the Village Counsel to
commence civil proceedings in a court of competent jurisdiction seeking
to enjoin the property or the closure of the structure, as well as
the imposition of civil penalties against any or all of the owners
thereof, and any such other relief as may be deemed appropriate. Nothing
contained in this subsection shall be construed to limit the ability
of the Chief of Police or Code Enforcement Officer, prior to the institution
of judicial proceedings, to enter into agreements with an owner willing
to voluntarily abate the condition(s) constituting the violation.
A.
Except in a proceeding under § 52-6, if after the commencement, but prior to the trial of an action brought by the Village pursuant to this chapter, an owner specifically stipulates with the Village that he/she will pursue a course of action as the parties agree will necessarily abate the conditions giving rise to the violation(s), the Village may agree to stay proceedings for a period of not more than 60 days with additional and reasonable periods cf extension as the parties may agree. In the event that the Village reasonably believes the owner is not diligently pursuing the action(s) contemplated by the stipulation, it may then apply to the court for a release from the stay, seeking some relief as is deemed appropriate.
B.
In an action seeking the closure of a structure as
a specified public nuisance, the Village shall have the initial burden
of proof to show by a preponderance of the evidence that the structure
is a specified public nuisance.
C.
In an action seeking civil penalties from an owner,
the Village shall have the initial burden of proof to show by a preponderance
of the evidence that the structure is a specified public nuisance.
D.
In any action brought to enforce the terms of this
chapter, evidence of a structure's general reputation and the reputation
of persons residing in or frequenting it shall be admissible as competent
evidence.
E.
Except in an action brought pursuant to § 52-6, it is an affirmative defense to an action seeking the closure of a structure that the owner of a structure at the time in question could not, in the exercise of reasonable care or diligence, determine that the structure was being used or maintained as a specified public nuisance. However, there shall be a presumption, subject to rebuttal, that the owner of the structure had knowledge of the existence of a specified public nuisance, or knowledge of conduct, activities, or circumstances constituting a specified public nuisance.
F.
In establishing the amount of any civil penalty, the
court may consider any of the following factors, as it may be appropriate,
and shall cite those found applicable:
(1)
The action taken by the owner(s) to mitigate or correct
the problem at the structure.
(2)
The financial condition of the owner.
(3)
Whether the problem at the structure was repeated
or continuous.
(4)
The magnitude or gravity of the problem.
(5)
The economic or financial benefit accruing or likely
to accrue to the owner(s) as a result of the conditions of the structure.
(6)
The cooperativeness of the owner(s) with the Village.
(7)
The cost to the Village of investigating and correcting
or attempting to correct the condition.
(8)
Any other factor deemed by the court to be relevant.
G.
Evidence of violations occurring in the immediate
vicinity of the subject building, building accessory, structure, lot
or yard, if reasonably connected to the subject property, shall be
admissible as competent to prove the existence of a specified public
nuisance.
A.
In the event that it is determined that the structure
is an immediate threat to the public safety and welfare, the Village
may take appropriate actions pursuant to its police power, including,
but not limited to, applying to the court for such interim relief
that is deemed by the Village Counsel to be appropriate. In such an
event, the notification procedures and limitations set forth in this
chapter are not required.
B.
In the event that the Chief of Police or Code Enforcement
Officer determines that a structure is or has been used as the locale
for the manufacture of controlled substances that involve the use
of toxic, flammable or explosive substances and/or processes that,
in the opinion of Police Department or Fire Department personnel,
present a continuing threat to the public's safety or welfare, the
Village may obtain an order from the court preventing that structure's
use or occupancy until such conditions are abated.
A.
In the event that a court finds that a structure constitutes
a specified public nuisance as defined in this chapter, the court
may order that it be closed for any period of up to one year and that
the owner(s) pay to the Village a civil penalty of up to $500 for
each day the owner had or should have had knowledge of activities
or conditions at the structure constituting a violation of this chapter,
or any other penalty or relief pursuant to law.
B.
The court may also authorize the Village to physically
secure the structure against use or occupancy in the event that the
owner(s) fails to do so within the time specified by the court. In
the event that the Village is authorized to secure the property, all
costs reasonably incurred by the Village to effect a closure shall
be made a lien upon the property in the same manner as property taxes
if not voluntarily paid by the owner to the Village within 30 days.
C.
In addition to any lien upon the structure or property,
any person who is assessed costs and/or a civil penalty by the court
shall be personally liable for the payment thereof to the Village.
Owners shall be jointly and severally liable.
D.
A judgment awarding a permanent injunction, pursuant
to this chapter, may direct the Chief of Police to seize and to remove
from the building, structure or place all materials, equipment and
instrumentalities used in the creation and maintenance of the public
nuisance and shall direct the sale by the Chief of Police of such
property in the manner provided for the sale of personal property
under execution pursuant to the provisions of the Civil Practice Law
and Rules. The net proceeds of any such sale, after deduction of the
lawful expenses involved, shall be paid into the general fund of the
Village.
E.
A judgment awarding a permanent injunction pursuant
to this chapter may authorize agents of the Village to forthwith remove
and correct construction and structural alterations in violation of
the applicable building and other codes. Any and all costs associated
with such repairs or alterations shall become a lien against said
property and shall have priority before any mortgage or other lien
that exists prior to such filing except tax and assessment liens and
any nuisance abatement lien.
F.
Seizure by the Chief of Police pursuant to this section
shall not constitute an act of possession, ownership or control by
the Chief of Police of the subject premises.
G.
Intentional disobedience of any court order pursuant
to this chapter shall be contempt of court and is punishable thereby
pursuant to law.
Whenever there is prima facie evidence, in the opinion of the Village Counsel, of a specified public nuisance at any building, structure, or real property within the Village of South Glens Falls, the Village Counsel may initiate an administrative hearing, not less than 10 days following service upon the owner by the Chief of Police or Code Enforcement Officer of the notice, pursuant to § 52-4B herein, that the structure has been determined by the Chief of Police or Code Enforcement Officer to be a specified public nuisance.
Notice shall be served upon an owner pursuant
to Article 3 of the New York State Civil Practice Law and Rules, upon
a tenant or lessee pursuant to § 735 of the New York State
Real Property Actions and Proceedings Law, and upon a mortgagee or
other person with a legal interest in the property by certified mail,
return receipt requested, sent to the last known address. Service
shall be complete upon delivery, mailing or posting without the necessity
of filing proof of service with the Clerk of the Village or of any
court. Proceedings shall be commenced by service of notice. The notice
shall allege the facts constituting the specified public nuisance
and shall set forth the time and place for a hearing to be held.
The administrative hearing shall be held before
the Mayor or his designee. At the hearing the Village Counsel or his
designee shall present relevant evidence as to the existence of a
specified public nuisance and as to the appropriate remedies. The
owners or anyone with a legal interest in the property or their representatives
may cross-examine witnesses and present their own evidence. Upon conclusion
of a hearing, the Mayor or his designee shall issue an order setting
forth his finding of fact and the appropriate remedies pursuant to
this chapter.
A.
The administrative order may authorize and direct
the closing of the building, building accessory, structure, lot or
yard by the Department of Public Works or the Village Police Department
to the extent necessary to abate the nuisance, but in no event longer
than one year. All costs reasonably incurred by the Village to effect
a closure shall be made a lien upon the property in the same manner
as property taxes if not paid by the owner to the Village within 30
days.
B.
The administrative order may revoke any Village-issued
certificates, permits, licenses, or letters of compliance.
C.
Administrative orders shall be posted conspicuously
on the building, structure or real property affected, and shall be
delivered personally or sent by certified mail and regular mail to
the owner(s), delivered personally or sent by regular mail to any
tenants or lessees, and sent by regular mail to any mortgagees or
others with a legal interest in the property.
D.
A closing by the Village pursuant to this section
shall not constitute an act of possession, ownership or control by
the Village of the closed premises.
E.
Intentional disobedience of any administrative order
pursuant to this chapter, including mutilation or removal of any postings,
shall be a misdemeanor and punishable upon conviction by a fine up
to $1,000 or 90 days in jail, or both.
