[HISTORY: Adopted by the Town Board of the
Town of Irondequoit 7-17-2007 by L.L. No. 3-2007. Amendments noted where
applicable.]
As used in this chapter, the following words
shall have the meanings indicated:
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.
Includes, but shall not be limited to, any one or more of
the following:
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.
Any building, structure, or real property used
for 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 materials as defined by the New York State Penal Law.
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 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 purposes of illegal sale, manufacture, or consumption of alcoholic
beverages as defined by the New York State Alcoholic 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 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.
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.
A.
The Town Attorney or Attorney to the Town, as the
case may be, 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 of a summons and complaint in the manner required by
the 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 one
or more of the owners of the property.
C.
The summons and complaint may also name as defendants
any operator, manager, tenant, lessee or other occupant 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 affidavits demonstrating
that the owner or his agent had notice from the Town of the existence
of the nuisance and had an opportunity to abate the nuisance.
F.
The venue of the action shall be in any court of competent
jurisdiction in the county where the public nuisance is being conducted,
maintained, permitted or allowed.
G.
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 owner.
H.
Defendants other than the building, structure or real
property shall be served with the summons and complaint in the manner
required by the New York State Civil Practice Law and Rules.
I.
With respect to any action commenced or to be commenced,
the Town may file a notice of pendency pursuant to the New York State
Civil Practice Law and Rules.
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.
A.
If, upon the trial of an action for a public nuisance
or upon a motion for summary judgment, a finding is made that the
defendants have caused, conducted, maintained, permitted, or allowed
a public nuisance, in addition to any other right, remedy, recovery,
award or judgment to which the Town may be entitled under this chapter
or other applicable law, a permanent injunction against the same may
be issued by the court. Any such permanent injunction may include,
among other things, one or more of the following:
(1)
A prohibition against defendants from causing, conducting,
maintaining, permitting or allowing the public nuisance.
(2)
An authorization to the Town and its agents to remove
and correct any conditions in violation of the Code of the Town of
Irondequoit. The judgment may further order that the costs incurred
by the Town for removing and correcting the violations, plus an administrative
charge of 50% as compensation to the Town for administering, supervising,
and/or handling such work, shall be charged against the defendants
and awarded to the Town. Such costs of removing and correcting the
violations, plus such administrative charge, shall constitute a lien
against the real property and shall be collected in the same manner
provided by law for the collection of real property taxes within the
Town.
(3)
A judgment directing the closing of the building,
structure, or real property by the Town of Irondequoit Police Department,
to the extent necessary to abate the nuisance.
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 action.
A.
If the judgment of the court directs the closing of
the building, structure, or real property, the Town of Irondequoit
Police Department shall serve the judgment upon the defendants in
the manner required by the New York State Civil Practice Law and Rules
and shall post a copy of the judgment upon one or more of the doors
at entrances to the building, structure, or real property or in any
other conspicuous place on the building, structure, or real property.
B.
In addition, the Town of Irondequoit Police Department
shall affix upon one or more of the doors at entrances to the building,
structure, or real property a printed notice stating "CLOSED BY COURT
ORDER" in block lettering a minimum of four inches high with a minimum
of 1/2 inch stroke width so as to be readily observed by anyone intending
to enter the premises.
C.
Mutilation or removal of such posted judgment or notice while it remains in force will be considered a separate violation under the New York State Penal Law and the Code of the Town of Irondequoit and shall be punishable pursuant to § 1-16.
D.
The Town of Irondequoit Police Department may then
command any and all persons present in the building, structure, or
real property to vacate the property forthwith. After the building,
structure or real property has been vacated, the Town of Irondequoit
Police Department may secure the premises.
E.
The closing directed by the judgment shall be for
such period as the court may direct, but in no event shall the closing
be for a period of more than one year from the posting of the judgment.
F.
A closing by the Town of Irondequoit Police Department
shall not constitute an act of possession, ownership, or control by
the Town.
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.
A.
The Town Board, upon receipt of a finding of fact
and recommendation from the panel, shall have the following powers
in furtherance of the abatement of public nuisances:
(1)
To issue a decision and order suspending or revoking, for a period not to exceed one year, the certificate of occupancy and/or certificate of registration of a rental occupancy and/or rental dwelling unit pursuant to Chapter 177 of the Code of the Town of Irondequoit, if applicable, for the building, structure, or real property.
(2)
To issue a decision and order directing the closing of the building, structure, or real property by the Irondequoit Police Department to the extent necessary to abate the nuisance, pursuant to the procedures set forth above in § 173-9.
(3)
In conjunction with, or in lieu of, the foregoing
powers, to issue a decision and order that various measures be taken
by the owner, tenant, and/or lessee of the property to the extent
necessary to both abate the existing nuisance and ensure the prevention
of future nuisance activity from occurring at or near the property,
which shall include, but not be limited to, requiring the owner to
modify and improve the usage and features of the premises to deter
further and future nuisance activity; mandating compliance with all
applicable building, housing, and property maintenance codes and regulations
pursuant to the Code of the Town of Irondequoit and/or the laws of
New York State; and/or directing subsequent owners to comply with
the provisions of any issued order of revocation or suspension for
the certificate of occupancy and/or certificate of registration of
a rental occupancy and/or rental dwelling unit unless or until the
subsequent owner appears before the hearing panel to provide an appropriate
plan for the panel to review and make recommendations thereon, wherein
said plan shall set forth measures to avoid further incidents of nuisance
activity.
B.
The decision and order shall be served upon the owners and, at the election of the Town, any tenant and/or lessee or the property in a manner similar to that described in § 173-12A herein.
C.
Nothing in this section shall limit the authority
of the Town Board to take such other and further actions and to avail
itself and the Town of any right or remedy available to it under this
chapter or otherwise under the Town of Irondequoit Code or other applicable
law deemed necessary or appropriate to abate any public nuisance so
as to ensure the protection of the health, safety and welfare of the
public.
