[HISTORY: Adopted by the Common Council of the City of Cohoes 7-24-2001
by Ord. No. 12-2001. Amendments noted where applicable.]
A.
It is unlawful for any structure to be employed or used
as a specified public nuisance within the City of Cohoes. If a structure is
found to be used or employed in violation of this subsection, 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 City of Cohoes 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 whom is vested:
A.
All or part of the legal title to property; or
B.
PERSON
SPECIFIED PUBLIC NUISANCE
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
VIOLATION
All or part of the beneficial ownership and a right to
present use and enjoyment of the premises.
Any natural person, association, partnership or corporation capable
of owning or using property in the City of Cohoes.
Any building, building accessory, business office, 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, business office, 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, business office, lot or yard used
for the purpose of loitering as defined in § 240.35 of the Penal
Law.
Any building, building accessory, business office, lot or yard used
for the purposes 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, business office, lot or yard used
for the purpose of unlawful activities described in the Alcoholic Beverage
Control Law.
[Amended 9-24-2002 by Ord. No. 13-2002]
Any building, building accessory, business office, lot or yard used
for the purpose of gambling activities described in Article 225 of the Penal
Law.
Any building, building accessory, business office, 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, business office, lot or yard wherein
there is or has occurred 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, business office, 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, business office, 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, business office, lot or yard used
for the purpose of welfare fraud or food stamp program fraud defined in the
Social Services Law of the State of New York.
Any building, building accessory, business office, lot or yard wherein
an occupant, guest, or invitee commits criminal activities involving assault,
gang assault, harassment, or disorderly conduct, as said criminal activities
arc defined in the New York State Penal Law.
[Added 4-22-2003 by Ord. No. 10-2003]
Any building, building accessory, business office, 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.
[Added 4-22-2003 by Ord. No. 10-2003]
Conduct or evidence of conduct prohibited under this chapter. A violation
does not require criminal prosecution and conviction but only 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 Corporation Counsel may bring and maintain a civil proceeding in
the name of the City of Cohoes for the following types of relief:
A.
Eviction.
(1)
The Corporation 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 bring a special proceeding 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 Corporation Counsel may commence judicial proceedings
to enjoin the property or cause the closure of the structure, as well as,
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 information:
(a)
The street address and a legal 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 with a
concise description of the conditions leading to his or her findings.
(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 city. Service shall be made either personally or
by mailing a copy of the notice by registered or 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.
C.
Concurrent with the notification procedures set forth
above, the Chief of Police or Code Enforcement Officer shall send a copy of
the notice to the Mayor as well as any other documentation which he or she
believes supports the closure of the structure and the imposition of civil
penalties. The Mayor may then authorize the Corporation 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) giving rise to
the violation.
A.
Except in a proceeding under § 122-6, if after the commencement, but prior to the trial of an action brought by the City pursuant to this chapter, if an owner specifically stipulates with the City 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 City may agree to stay proceedings for a period of not less than 10 nor more than 60 days. The owner or the City may thereafter petition the court for such additional like periods of time as may be necessary to complete the action(s) contemplated by the stipulation. However, in the event that the City 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 City 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
City shall have the initial burden of proof to show by a preponderance of
the evidence that the owner had or should have had knowledge of activities
or conditions at the structure constituting a violation of this chapter.
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.
E.
Except in an action brought pursuant to § 122-6, 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.
[Amended 4-22-2003 by Ord. No. 10-2003]
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 actions 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 at the structure.
(6)
The cooperativeness of the owner(s) with the city.
(7)
The cost to the City 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, business office, lot or yard,
if reasonably connected to the subject property, shall be admissible as competent
to prove the existence of a specified public nuisance.
[Added 4-22-2003 by Ord. No. 10-2003]
A.
In the event that it is determined that the structure
is an immediate threat to the public safety and welfare, the City 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 Corporation
Counsel to be appropriate. In such an event, the notification procedures and
limitations set forth in this Chapter need not be complied with.
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 City may obtain an order from the court preventing
that structure's use or occupancy for a period of 60 days.
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 City 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 City to physically secure
the structure against use or occupancy in the event that the owner(s) fail
to do so within the time specified by the court. In the event that the City
is authorized to secure the property, all costs reasonably incurred by the
City 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 City within 30 days.
C.
Any person who is assessed costs and/or a civil penalty
by the court shall be personally liable for the payment thereof to the city.
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 remove from the
building, structure or place all material, 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 city.
E.
A judgment awarding a permanent injunction pursuant to
this chapter may authorize agents of the City to forthwith remove and correct
construction and structural alterations in violation of the applicable building
and other codes. Any and all costs associated with these 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.
A closing 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 closed premises.
G.
Intentional disobedience of any court order pursuant
to this chapter shall be contempt of court and punishable thereby pursuant
to law.
If any provision of this chapter or the application thereof to any person
or circumstances is held invalid, the remainder of this chapter and the application
of such provisions to other persons and circumstances shall not be rendered
invalid thereby.
[Added 4-22-2003 by Ord. No. 10-2003]
Whenever there is prima facie evidence, in the opinion of the Corporation Counsel, of a specified public nuisance at any building, structure, or real property within the City of Cohoes, the Corporation 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 § 122-4B herein, that the structure has been determined by the Chief of Police or Code Enforcement Officer to be a specified public nuisance.
[Added 4-22-2003 by Ord. No. 10-2003]
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 City 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.
[Added 4-22-2003 by Ord. No. 10-2003]
The administrative hearing shall be before the Commissioner of Public
Safety, and if that office is vacant, then before the Mayor or his designee.
At the hearing, the Corporation 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. The Commissioner of Public Safety or, if that office is vacant,
the Mayor or his designee shall issue an order setting forth his finding of
fact and the appropriate remedies pursuant to this chapter.
[Added 4-22-2003 by Ord. No. 10-2003]
A.
The administrative order may authorize and direct the
closing of the building, building accessory, business office, lot or yard
by the Department of General Services or the Police Department to the extent
necessary to abate the nuisance, but in no event longer than one year. All
costs reasonably incurred by the City 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 City within 30 days.
B.
The administrative order may revoke any City-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 City pursuant to this section shall
not constitute an act of possession, ownership or control by the City 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.
