[HISTORY: Adopted by the Council of the City
of Watervliet as indicated in article histories. Amendments noted
where applicable.]
[Adopted 4-20-1972 as § 14-1 of Ch. 14 of the
Code of Ordinances of 1972]
A.
It shall be unlawful for any person to mar, injure,
destroy or aid in injuring, destroying or defacing in the City any
public or private property.
B.
No person shall mar, injure, destroy or deface or
cause to be marred, injured, destroyed or defaced, any bridge, fence,
tree, street sign, awning, lamppost, electric light post or apparatus
or any property not belonging to the person so offending, whether
public or private.
[Amended 9-5-1996 by Ord. No. 1638]
Any person violating any provision of this section
shall be deemed guilty of violation, as defined in § 10.00,
Subdivision 3, of the Penal Law of the State of New York and, upon
conviction thereof, shall be subject to a fine not exceeding $1,000
and to a similar fine for each day that such violation continues.
[Adopted 5-23-2013 by Ord. No. 1899[1]]
[1]
Editor’s Note: This ordinance also repealed former Art.
II, Abatement of Public Nuisances, adopted 4-17-2003 by Ord. No. 1730,
as amended.
A.
It is unlawful for any premises to be employed or used as a specified
public nuisance within the City of Watervliet. If the property 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 premises 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 civil
penalty pursuant to law.
As used in this article, the following terms have the meanings
given them in this section.
Building Inspector for the City of Watervliet.
The Chief of the Watervliet Police Department or any person
designated by the Chief of Police as his or her designee in the enforcement
of this article.
Code Enforcement Officer(s) for the City of Watervliet.
Any person, agent, firm, corporation, association or partnership,
including a mortgagee in possession of whom is vested:
Any natural person, association, partnership or corporation
capable of owning or using property in the City of Watervliet.
The building, building accessory, structure, business office,
lot, yard, place or property whereon a public nuisance is being conducted
or exits.
Any premises 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 Article 220 and
marijuana as defined in Article 221 and § 240.36 of the
Penal Law.
Any premises 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 premises used for the purpose of loitering as defined in
§ 240.35 of the Penal Law.
Any premises used for the purposes of business activity or enterprise
which is not licensed as required by federal, state or local law and/or
ordinance.
Any premises used for the purpose of unlawful activities described
in the Alcohol Beverage Control Law.
Any premises used for the purpose of gambling activities described
in Article 225 of the Penal Law.
Any premises where there exists or is occurring a violation of Chapter 127, Building Construction and Fire Prevention, Chapter 128, Buildings, Unsafe, Chapter 135 Outdoor Burning, Open Burning and Burning of Refuse, Chapter 168, Garbage, Waste, Littering and Recycling, Chapter 175, Housing Standards, and Chapter 272, Zoning, of the Code of the City of Watervliet, which violation rises to the level of dangerous to health or safety.
Any premises wherein there is or has occurred a criminal nuisance
as defined in §§ 240.45 and 240.46 of the Penal Law.
Any premises wherein there is or has occurred a violation of
the provisions of §§ 165.40, 165.45, 165.50, 165.52,
165.54, of the Penal Law (Criminal Possession of Stolen Property),
170.10 (Falsifying Business Records), 170.65 (Forgery of a Vehicle
Identification Number), and 170.70 (Illegal Possession of a Vehicle
Identification Number).
Any premises used for the purpose of, or to aid in, the commission
of a violation of Article 265 of the Penal Law (Firearms and Other
Dangerous Weapons).
Any premises used for the purpose of animal fighting or cruelty
to animals as defined in the Agriculture and Markets Law.
Any premises used for the purpose of welfare fraud or food stamp
program fraud defined in the Social Services Law.
Any premises wherein there is or has occurred a violation of
Article 178 (Criminal Diversion of Prescription Medications and Prescriptions)
of the Penal Law.
Any premises used for the purpose of possession, use, sale or
offer for sale of any alcoholic beverage in violation of Article 18
of the Tax Law, or of any cigarette or tobacco products in violation
of Article 20 of the Tax Law.
Any premises wherein there is or has occurred a violation of
§§ 260.20 and 260.21 (Unlawfully Dealing with a Child)
and Articles 130 (Sex Offenses) and 263 (Sexual Performance by a Child)
of the Penal Law.
Any premises wherein an occupant, guest or invitee commits a
violation of Articles 120 (Assault and Related Offenses) and 240 (Offenses
Against Public Order).
Any premises wherein there is or has occurred a violation of Chapter 197, Noise, of the Code of the City of Watervliet.
Conduct or evidence of conduct prohibited under this article.
A violation does not require criminal prosecution and conviction but
only a preponderance of the evidence that prohibited conduct is occurring
or has occurred. Evidence of prohibited conduct may include, but is
not limited to, 911 calls, incident 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 Watervliet 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 grounds that the premises, or any part thereof, have been used
as a public nuisance as defined in this article.
(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 article.
B.
When the Chief of Police, Building Inspector or Code Enforcement
Officer believes that the premises has been or is being used or maintained
in violation of this article, the Corporation Counsel may commence
judicial proceedings to enjoin the property or cause the closure of
the premises, as well as the imposition of civil penalties against
any or all of its owner(s).
(1)
The Chief of Police, Building Inspector or Code Enforcement Officer
shall notify the owner(s) of record, in writing, that the premises
has been determined to be a specified public nuisance. The notice
shall contain the following information:
(a)
The street address and a legal description sufficient for identification
of the premises.
(b)
A statement that the Chief of Police, Building Inspector or
Code Enforcement Officer has found the premises to be in violation
of this article 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 premises is located and as may be otherwise known to the Chief
of Police, Building Inspector or Code Enforcement Officer. If no address
appears or is known to the Chief of Police, Building Inspector or
Code Enforcement Officer, then a copy shall be mailed by certified
mail, postage prepaid, addressed to such person at the address of
the premises 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 premises
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
certified mail, postage prepaid, to him/her at the premises.
C.
Concurrent with the notification procedures set forth above, the
Chief of Police, Building Inspector 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 premises 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
premises, 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, Building Inspector
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 § 202-7, if after commencement, but prior to the trial of an action brought by the City pursuant to this article, 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 no 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 the premises as a specified public
nuisance, as well as the imposition of civil penalties, the City shall
have the initial burden of proof to show by a preponderance of the
evidence that the property is a specified public nuisance.
C.
In action brought to enforce the terms of this article, evidence
of a structure's general reputation and the reputation of persons
residing in or frequenting it shall be admissible as competent.
D.
The lack of knowledge of, acquiescence or participation in or responsibility
for a public nuisance on the part of the owner, mortgagee, lessor,
lessee or any other person directly or indirectly in control of the
premises, or having any 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, lessor, lessee or
other person.
E.
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 premises.
(2)
The financial condition of the owner.
(3)
Whether the problem at the premises 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 premises.
(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.
F.
Evidence of violations occurring in the immediate vicinity of the
subject premises, 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 premises is an immediate
threat to 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 event, the notification
procedures and limitations set forth in this article need not be complied
with.
B.
In the event that the Chief of Police, Building Inspector or Code
Enforcement Officer determines that the premises 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 the 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 premises'
use or occupancy for a period of 60 days.
A.
In the event that a court finds that the premises constitutes a specified
public nuisance as defined in this article, 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 during
or on which the activities or conditions at the premises constituting
a violation of this article shall occur, or any other penalty or relief
pursuant to law.
B.
The court may also authorize the City to physically secure the premises
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 article,
may direct the Chief of Police to seize and remove from the premises
all material, equipment and instrumentalities used in the creation
and maintenance of the public nuisance. Any seized property shall
be disposed of pursuant to law.
E.
A judgment awarding a permanent injunction pursuant to this article
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 costs associated with these repairs or alterations
shall become a lien against the 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 City pursuant to this section shall not constitute
an act of possession, ownership or control by the City of the closed
premises.
G.
Intentional disobedience of any court order pursuant to this article
shall be contempt of court and punishable thereby pursuant to law.
Whenever there is prima facie evidence, in the opinion of the Corporation Counsel, of a specified public nuisance at any premises within the City of Watervliet, the Corporation Counsel may initiate an administrative hearing, not less than 10 days following service upon the owner by the Chief of Police, Building Inspector or Code Enforcement Officer of the notice, pursuant to § 202-5B herein, that the premises has been determined by the Chief of Police, Building Inspector or Code Enforcement Officer to be a specified public nuisance.
Notice shall be served upon an owner pursuant to Article 3 of
the Civil Practice Law and Rules, upon a tenant or lessee pursuant
to Section 735 of the Real Property Actions and Proceedings Law, and
upon a mortgagee or other person with a legal interest in the property
by means of 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
City Clerk 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 before the Commissioner
of Public Safety and, if that office is vacant, then before the Mayor
or his/her designee. At the hearing, the Corporation Counsel or his/her
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/her
designee shall issue an order setting forth his finding of fact and
the appropriate remedies pursuant to this article.
A.
The administrative order may authorize and direct the closing of
the premises by the Department of Public Works, Building Department
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 suspend for a period not to exceed six
months or revoke for a period of one year any City-issued certificates,
permits or licenses, including, but not limited to, any occupational
license or permit issued by the City related to the conduct of a business
or trade at the premises, which suspension or revocation shall also
apply to any other location operated by the holder for which the certificate,
license or permit is required.
C.
Administrative orders shall be posted conspicuously on the premises
affected, and shall be delivered personally or sent be 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 article, including mutilation or removal of any postings, shall
be a misdemeanor and punishable upon conviction by a fine of up to
$1,000 or by imprisonment not to exceed six months, or both.
Neither the City of Watervliet, 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 article.
If any provision of this article or the application thereof
to any person or circumstance is held invalid, the remainder of this
article and the application of such provisions to other persons and
circumstances shall not be rendered invalid thereby.
