As used in this chapter, the following words
shall have the meanings indicated:
OWNER
The person or persons or entity or entities that are the
owner or owners of record at the office of the Town Assessor of the
property.
PUBLIC NUISANCE
Includes, but shall not be limited to, any one or more of
the following:
A.
Any building, structure, or real property used
for purposes of illegal use, possession, or distribution of a drug,
controlled substance or marijuana as defined by the New York State
Penal Law.
B.
Any building, structure, or real property used
for 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 materials as defined by the New York State Penal Law.
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 possession, use, or sale of firearms or
weapons as defined by the New York State Penal Law.
F.
Any building, structure, or real property used
for the purposes of illegal sale, manufacture, or consumption of alcoholic
beverages as defined by the New York State Alcoholic Beverage Control
Law.
G.
Any building, structure, or real property wherein
there exists or has occurred a criminal nuisance as defined by the
New York State Penal Law.
H.
Any building, structure, or real property used
for purposes of loitering as defined by the New York State Penal Law.
I.
Any building, structure, or real property wherein there exists or has occurred any violation of the Code of the Town of Irondequoit, including but not limited to Chapter
79, Animals; Chapter
98, Building Construction and Fire Prevention; Chapter
160, Noise; Chapter
235, Zoning; and the New York State Uniform Fire Prevention and Building Code, including the Property Maintenance Code of New York State.
J.
Any building, structure, or real property wherein
an occupant, guest, or business invitee commits criminal activities
or other offenses involving assault, gang assault, harassment, or
disorderly conduct, as said criminal activities are defined by the
New York State Penal Law.
No owner, operator, manager, tenant, lessee,
or other occupant of or visitor to a building, structure, or real
property shall knowingly cause, conduct, maintain, permit, or allow
the existence of a public nuisance at the building, structure, or
real property.
Written notice delivered by the Town to the
property owner, operator, manager, tenant, lessee, or other occupant
of a building, structure, or real property by first-class, certified
or registered U.S. Mail, return receipt requested, or by personal
service on the owner, of any activity or activities constituting a
public nuisance shall be prima facie evidence of knowledge of said
public nuisance.
The existence of three or more criminal convictions for any of the activities set forth in the definition of "public nuisance" in §
173-1 at any building, structure, or real property within a two-year period prior to the commencement of a civil action and/or an administrative hearing shall be prima facie evidence of the existence of a public nuisance. For the purposes of this chapter, a "criminal conviction" shall be defined as the entry of a guilty plea to, and/or a verdict of guilty for, one or more counts set forth in an accusatory instrument.
The existence of three or more incidents of
any of the following activities at any building, structure, or real
property within a one-year period prior to the commencement of a civil
action and/or an administrative hearing shall be prima facie evidence
of the existence of a public nuisance:
A. Conviction for any of the activities set forth in the definition of a "public nuisance" in §
173-1 occurring on or in immediate proximity to the property.
B. Arrest for any of the activities set forth in the definition of a "public nuisance" in §
173-1 occurring on or in immediate proximity to the property.
C. Service of an accusatory instrument charging any of the activities set forth in the definition of "public nuisance" in §
173-1 occurring on or in immediate proximity to the property. For purposes of this chapter, "accusatory instrument" shall include, but is not limited to, any criminal information, misdemeanor, and/or felony complaint filed in a court of competent jurisdiction and/or, with regard to unfit, unsafe and/or fire-damaged buildings or structures on or in immediate proximity to the property, a notice of violation issued by the Town of Irondequoit Department of Community Development, the Town of Irondequoit Police Department, the Fire Marshal of the Town of Irondequoit, and/or other authorized entities or officials with jurisdiction in the Town.
D. Service of a search warrant on the building, structure,
or real property where controlled substances, marijuana, and/or illegal
firearms or weapons are seized.
E. The finding of illegal controlled substances or illegal
firearms or weapons on the building, structure, or real property.
F. Investigative purchases of illegal drugs, controlled
substances or marijuana on the building, structure, or real property
by law enforcement agencies or their agents.
If, upon the trial of an action for a civil
nuisance or upon a motion for summary judgment, a finding is made
that any defendant has caused, conducted, maintained, permitted, or
allowed a public nuisance, a penalty may be awarded by the court in
an amount not to exceed $1,000 for each day it is found that such
defendant caused, conducted, maintained, permitted, or allowed the
public nuisance after notice to abate same had been given by the Town.
Upon recovery, such penalty shall be paid to the Town general fund.
Upon a motion for a permanent injunction or
order to show cause by the Town 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 an 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 or Attorney to the Town, as the case may
be, may initiate an administrative hearing.
A. Service of notice. A notice of the hearing shall be
served on all owners and may also be served on any known tenants or
lessees or other occupants of the building. The notice shall be served
in the manner required by the New York Civil Practice Law 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 Director of Community Development, a member
to be appointed by the Chief of Police, and a member to be appointed
by the Fire Marshal. Each appointing authority shall be authorized
to appoint himself or herself or any member of his or her staff to
the hearing panel.
D. Hearing. At the time and place designated in the notice,
the Town Attorney or Attorney to the Town, as the case may be, or
his or her designee shall present all relevant evidence and/or witnesses
demonstrating the existence of a public nuisance at the building,
structure, or real property and as to any appropriate remedies. The
owners, or their representatives, shall have the right to examine
such evidence and to cross-examine any witnesses presented by the
Town Attorney or Attorney to the Town, as the case may be, or his
or her designee. The owners, or their representatives, shall have
the right to present any relevant evidence and/or witnesses in their
defense. The Town Attorney or Attorney to the Town, as the case may
be, or his or her designee, shall have the right to examine such evidence
and to cross-examine any witnesses presented by the owners, or their
representatives.
E. Panel's finding and recommendation: Within five business
days of the hearing, the panel shall provide written findings of fact
to the Town Board. Such written findings shall state whether there
prima facie evidence exists of a public nuisance at the building,
structure, or real property and shall further provide a written recommendation
of remedies to abate the public nuisance.