[HISTORY: Adopted by the Board of Trustees of the Village of Colonie 1-12-2004
by L.L. No. 1-2004. Amendments noted where applicable.]
The Village Board of the Village of Colonie finds that public nuisances
sometimes exist in the Village of Colonie in the operation of establishments
across a wide range of businesses and private residences and the use of property
in violation of the penal laws relating to controlled substances, dangerous
drugs, prostitution, stolen property and illegal use or possession of weapons,
the defacement of private property, and other disturbances, as well as other
provisions of state and local law, all of which would substantially and seriously
interfere with the interest of the public in the quality of life and total
community environment, commerce in the Village, property values and the public
health, safety and welfare. The Village Board further finds that the occurrence
of such activities and violations is detrimental to the health, safety and
welfare of the citizens of the Village of Colonie and to the businesses thereof
and visitors thereto. It is the purpose of this chapter to create a system
to impose sanctions and penalties for public nuisances, as defined by this
chapter, and to permit the powers created herein to be exercised either in
conjunction with, or apart from, the powers contained in other laws without
prejudice to the use of procedures and remedies available under such other
laws. The Village Board further finds that the sanctions and penalties imposed
by the Hearing Officer pursuant to this chapter constitute an additional and
appropriate method of law enforcement in response to the proliferation of
the above-described public nuisances. The sanctions and penalties are reasonable
and necessary in order to protect the health and safety of the people of the
Village of Colonie and to promote the general welfare.
This chapter shall not apply to any buildings owned and operated for
public purposes by:
For the purposes of this chapter, the following terms shall have the
meanings indicated, unless the context clearly requires otherwise. However,
the singular may be interpreted to include the plural, the feminine interpreted
to include the masculine, and vice versa.
The Chief of the Town of Colonie Police Department or his or her
designee.
An individual hired by the Village Board of the Village of Colonie
for the purpose of adjudicating alleged violations of this chapter.
An event, circumstance or activity at which a single violation, or
multiple violations, of the acts prohibited by this chapter occurs.
The person or entity that is listed as the mortgagee on any unsatisfied
or otherwise open mortgage on the premises recorded in the office of Albany
County Clerk.
The person or entity in whose name the premises affected by an order,
issued in accordance with this chapter, is recorded as the owner in the office
of the Albany County Clerk.
The building, place or property whereon a public nuisance is being
conducted or exists or which is the source of the same.
A public nuisance shall be deemed to exist whenever, through violations
of any of the following provisions resulting from separate incidents occurring
at or predicated at events, circumstances or activities occurring on the premises,
12 or more points are accumulated within a period of six months, or 18 or
more points are accumulated within a period of 12 months, in accordance with
the following point system.
Where more than one violation occurs during a single incident, the total
points for the incident shall be the highest point value assigned to any single
violation. However, the next time an incident occurs at the same premises
within the next 12 months, the total points for the incident will be the sum
of the two highest point values assigned. For the third, and any subsequent,
incidents occurring within the same twelve-month period at a premises, the
total points for the incident will be the sum of the point values assigned
for all of the violations.
The following violations shall be assigned the point value indicated:
Any violation, misdemeanor or felony listed upon Schedule A attached shall be assigned the points delineated therein.[1]
Any other felony under New York State or federal law: six points.
Any other misdemeanor under New York State or federal law: four points.
Any other violation under New York State or federal law: two points.
Any violation of the Code of the Village of Colonie: two points.
The Village Attorney of the Village of Colonie, or a designee of
same.
[1]
Editor's Note: Schedule A is included at the end of this chapter.
The Village Attorney is charged with prosecution of the violations of
this chapter. Upon deciding to prosecute an alleged public nuisance, the Village
Attorney shall request the Village Board to appoint a Hearing Officer. A complaint
with any supporting documentation requesting an order to abate the public
nuisance shall be filed by the Village Attorney with the Hearing Officer.
A.
Prior to the issuance of an order by the Hearing Officer,
pursuant to this chapter, the Hearing Officer shall give notice and opportunity
for a hearing to the owner, and any other person directly or indirectly in
control of the premises wherein the public nuisance is being conducted, maintained
or permitted. Such notice shall be served upon an owner or any other person
directly or indirectly in control of the premises pursuant to Article 3 of
the New York State Civil Practice Law and Rules, and upon a mortgagee by means
of certified mail, return receipt requested, sent to the mortgagee's
last known address, provided that any service other than delivery to the person
to be served shall be complete immediately upon delivery, mailing or posting
without the necessity of filing proof of service with the clerk of the court.
B.
The notice provided for in Subsection A of this section shall:
(1)
Specify the activity or activities creating the public
nuisance;
(2)
Provide 30 days for elimination of the public nuisance;
(3)
Inform the person to whom it is directed of his or her
right to apply within 10 days of service of the notice for a hearing before
the Hearing Officer;
(4)
Inform the owner or any other person directly or indirectly
in control of the premises that upon expiration of 30 days after service without
a hearing before the Hearing Officer, or upon noncompliance with any written
agreement reached at the hearing, the Hearing Officer shall act to obtain
compliance as provided by this chapter; and
(5)
Inform the owner or any other person directly or indirectly
in control of the premises of the obligation to post a copy of the notice
within five days, in a conspicuous place, so that all premises occupants and
others entering the premises shall have notice that the public nuisance is
being conducted, maintained or permitted on the premises and that, upon expiration
of 30 days after service of the notice, the Hearing Officer shall act to obtain
compliance as provided in this chapter, including, but not limited to, closing
the premises.
A conviction for an offense delineated in the definition of "public
nuisance" in a court of competent jurisdiction or an administrative bureau
shall not be required. Instead, the Village shall prove by a preponderance
of the evidence that the offense has occurred. However, a conviction as defined
and applied in accordance with the provisions of § 1.20 of the Criminal
Procedure Law, in any court of competent jurisdiction, shall constitute conclusive
proof that an offense has occurred. Conviction of an attempt to violate any
of the provision delineated in the definition of "public nuisance" shall be
considered a conviction of the specified provision for the purposes of this
chapter.
The lack of knowledge of acquiescence or participation in, or responsibility
for a public nuisance on the part of the owner, mortgagee or any other person
directly or indirectly in control of the premises, or having an interest in
the premises or in any property, real or personal, used in conducting or maintaining
the public nuisance, shall not be a defense by such owner, mortgagee or other
person.
In addition to the enforcement procedures established elsewhere in this
chapter, the Hearing Officer, after notice and opportunity for a hearing,
shall be authorized to:
A.
Order the discontinuance of such activity at the premises
where such public nuisance exists; and/or
B.
Order the closing of the premises to the extent necessary
to abate the public nuisance; and/or
C.
Order such other relief as the Hearing Officer deems
just and proper, including a minimum fine of $250 in amount or by imprisonment
not exceeding 15 days, or both.
The Hearing Officer shall issue the order provided for § 151-7 of this chapter by posting said order on the premises wherein the public nuisance is occurring and mailing a copy by first class mail of said order to the owner, mortgagee or any other persons directly or indirectly in control of the premises, within one business day of the posting of said order on the premises.
A.
No sooner than five business days after the issuance
of an order pursuant to this chapter, and upon the directive of the Chief,
officers of the Town of Colonie Police Department are authorized to act upon
and enforce such order.
B.
Where the Chief closes a premises pursuant to this section,
such closing shall be for such period as the Hearing Officer may direct, but
in no event shall the closing be for a period of greater than one year from
the issuance of the order.
C.
Upon receiving a copy of the order issued by the Hearing
Officer, pursuant to this chapter, the Village Attorney may commence a special
proceeding to affix a civil penalty in the amount of $5,000, and to collect
any costs and expenses incurred by the Village of Colonie, in commencing the
proceeding, closing the premises (if applicable) and in relocating any occupants
on the premises (if applicable.) The Village Attorney shall file a notice
of pendency of the proceeding in the Albany County Clerk's office.
D.
The judgment in such proceeding, in favor of the Village
of Colonie, shall establish the penalty sued for with costs and disbursements
as a lien upon the premises, subject only to taxes, assessments, water rates,
mortgages and mechanics' liens as they exist thereon.
A.
The Village Attorney shall have the power, on ex parte application to any court of competent jurisdiction, to appoint a receiver of rents and profits of the premises for the purposes of collecting the civil penalty established pursuant to § 151-9 of this chapter, and abating the public nuisance. The receiver shall have the powers, duties and rights of the receiver of rents and profits of real estate, as provided by law; provided, however, that the Village Attorney shall act as counsel to the receiver, and the receiver shall not be allowed any expenditure for counsel fees, and the receiver's commission shall be no greater than 10% of the receiver's services and those of any agent or agents whom the receiver may retain. The receivership shall continue until the amount of the Village of Colonie's liens, with interest at the rate of 9% per annum and the receiver's commissions, have been fully paid and the nuisance abated; provided, further, that nothing in this section shall be construed to prevent any prior lien or from applying to a court in a proper case for a receiver of the premises.
B.
At any time after the entry of any judgment establishing
a lien upon the premises, the Village Attorney, on behalf of the Village of
Colonie, may apply to a court for leave to sell the premises. Upon such application,
the court may order the premises sold at public auction, subject to taxes,
assessments, water rates, mortgages and mechanics' liens.
A closing directed by the Hearing Officer pursuant to this chapter shall
not constitute an act of possession, ownership or control by the Village of
Colonie of the closed premises.
A.
It shall be a misdemeanor for any person to use or occupy,
or to permit any other person to use or occupy, the premises, or any portion
thereof, ordered closed by the Hearing Officer.
B.
Mutilation or removal of a posted order of the Hearing
Officer shall be punishable by a fine of not more than $250, or by imprisonment
not exceeding 15 days, or both, provided that such order contains therein
a notice of such penalty.
C.
Intentional disobedience of or resistance to any provision
of the order issued by the Hearing Officer, in addition to any other punishment
prescribed by law, shall be punishable by a fine of not more than $500, or
imprisonment not exceeding six months, or both.
D.
Each day's violation shall constitute a separate
offense.
The Village Board may promulgate such rules and regulations as may be
necessary to carry out the provision of this chapter.
Neither the Village of Colonie nor any officer, agent or employee thereof
shall be personally liable for any damage resulting from any official determination,
order or action required or permitted by or under this chapter.
For the purposes of this chapter, references to the Penal Law shall
mean the laws of the State of New York.
The penalties provided for the violation of any or all Village laws
and ordinances, and of all state laws, except where otherwise especially provided,
shall be sued for in an action to be brought by the Village Attorney on behalf
of the Village of Colonie in its corporate name, and the amount collected
in each and every action shall be paid to the Village Treasurer of the Village
of Colonie for the use of the Village.
If any provision of this chapter or the application thereof to any person
or circumstance is held invalid, the remainder of this chapter and the application
of such provision to other persons or circumstances shall not be rendered
invalid thereby.
This chapter shall become effective upon its proper filing in the office
of the Department of State.
