[HISTORY: Adopted by the Board of Trustees of the Village of Phoenix as indicated in article histories. Amendments noted where applicable.]
Dumpsters — See Ch. 91.
Fire prevention and building construction — See Ch. 98.
Nuisance abatement — See Ch. 125.
Parental responsibility — See Ch. 132.
Parks and public property — See Ch. 133.
Penalties — See Ch. 142.
Rental property — See Ch. 148.
Solid waste — See Ch. 161.
Stormwater management and erosion and sediment control — See Ch. 164.
Streets and sidewalks — See Ch. 165.
[Adopted 12-4-2012 by L.L. No. 8-2012]
Editor's Note: This local law also provided for the repeal of former Ch. 99, Property Maintenance, consisting of Art. I, General Property Maintenance, adopted 8-7-2007 by L.L. No. 4-2007.
This Chapter 99 shall be known as the "General Property Maintenance Law."
It is hereby declared to be the policy of the Village Board of Trustees to provide for the proper use of land, including as improved; to deter, prevent and cause the timely removal of unsafe, unhealthy, hazardous or dangerous conditions arising from a variety of conditions, including, without limitation, the growth and accumulation of brush, grass, rubbish and weeds, the growth of poisonous shrubs or weeds, the accumulation of stagnant and standing waters, deteriorated, damaged or poorly maintained lands and improvements, conditions likely to cause or contribute to the presence or infestation of insects, vermin, and disease, dangerous fumes and odors, and other similar conditions, thus also exposing properties and neighborhoods to the potential for similar deterioration, illegal occupancies and conduct; and otherwise to address the failure of general property repair and maintenance and incidences of public nuisance(s) and protect the public health, safety and general welfare of residents of this Village.
By this article, the Village Board of Trustees seeks to remove such dangers to health, life and property by requiring owners (as such term "owner" is defined herein) of land and of improvements thereon to cut, trim or remove brush, grass, rubbish and weeds and/or to spray with herbicides, cut, trim, remove and destroy poisonous shrubs and/or weeds, to mitigate or remove the accumulation of stagnant and standing waters, and to address such other adverse conditions affecting their real property and improvements as described in § 99-2A hereof, and to generally correct the failure of real property maintenance and repair, including both minor and major, and such structural, systemic and adverse aesthetic/cosmetic conditions and concerns, and, upon their failure, refusal or inability to do so, to cause the same to be done and to assess the costs against the real property on which such conditions are found. Where such conditions present an emergency or similar circumstance, posing an imminent threat or danger to persons or property due to the increased risk to bodily injury or significant property damage, or where same results from recurring violations or a repeat violation (owner), this article also provides a means of timely and effectively addressing such circumstance.
As used in this article, the following terms shall have the meanings indicated:
- A. Include the following:
- (1) The owner of the real property upon or within which any conditions required to be addressed pursuant to this article are located.
- (2) The owner of real property immediately fronting on a portion of any highway, street or road of the Village of Phoenix, upon which portion any rubbish ordered removed pursuant to this article is located.
- (3) Any other person or entity who, alone or jointly or severally with others, shall have legal or equitable title to any premises, with or without accompanying actual possession thereof, or shall have possession, charge, care or control of any dwelling unit as owner or as executor, executrix, administrator, administratrix, trustee, receiver or guardian of the estate or as a mortgagee or lienor in possession, regardless of how such possession was obtained. Any person who is a lessee subletting or reassigning any part or all of any dwelling or dwelling unit shall be deemed to be a co-owner with the lessor and shall have joint responsibility over the portion of the premises sublet or assigned by said lessee.
- B. The respective obligations and responsibilities of the owner on one hand and any occupant, possessor or tenant on the other shall not be altered or affected by any agreement or contract by and between any of the aforesaid or between them and other parties. As between a holder of legal title, persons in possession, lessee or sublessee, or mortgagee of a property abandoned or known to be in foreclosure, or otherwise a mortgagee in possession, each such party shall be presumed as responsible for any conditions or violations cited hereunder and as a party upon whom notice shall be deemed good and sufficient as against all such responsible parties, subject to the right of such party to rebut the same pursuant to the hearing provisions hereunder.
- C. The foregoing persons are intended to describe and define all such persons responsible or potentially responsible for a violation of the property maintenance requirements herein, including those who commit or allow the commission of same by their respective acts or omissions, as well as those who, by applicable law or contract, are charged with or have assumed such responsibility or liability. The failure of a person duly noticed hereunder to object to the determination of the Village that he/she is a person legally responsible for the real property and/or potentially liable for a violation under this article shall be presumptive on the issue of responsibility and liability for any such violation determined to exist. Such objection may be introduced by such person or other credible witness having personal knowledge at the hearing provided for hereunder, or by submission of an affidavit and other documentary evidence to and received by the Village not less than two days prior to the date of any hearing that is not based upon an emergency providing for less such notice, and shall otherwise be provided to the Village Board in such manner as to ensure actual notice. The Village Board shall consider all such evidence in making any determination that a person duly noticed is a responsible and liable person hereunder. The Village Board may consider, where more than one responsible and liable person exists, and for good cause, whether or not to proceed or not proceed against such person or persons.
- Includes any individual, society, club, firm, partnership, corporation, trust or other entity or association of persons, including parents, subsidiaries and affiliates, where appropriate. Reference herein to the singular shall mean, where appropriate, the plural.
- REAL PROPERTY
- The real property, as improved, including any surface or subsurface conditions, items or substances, personalty or fixtures situate thereon, dwellings, buildings or other structures and improvements upon or within which any conditions required to be addressed pursuant to this article are located. The real property is also sometimes hereafter referred to as "property" or "premises."
- A. Includes the following:
- (1) Lumber, junk, trash, debris, building materials, mounds or dirt or any other deleterious materials.
- (2) Any abandoned, discarded or unused objects or equipment, such as automobile parts, furniture, stoves, refrigerators, freezers, cans, containers or vehicle tires.
- (3) Any compost pile which is of such a nature as to spread or harbor disease, emit unpleasant odors or gas or attract rodents, vermin or other disease-carrying pests, animals or insects.
- (4) Any unsanitary matter or materials.
- (5) Refuse, rubbish and garbage, as said terms are defined in any solid waste provision of this Code.
- (6) Tree or grass trimmings, brush or shrubbery trimmings, trees, brush or shrubbery or portions thereof severed from their roots or uprooted trees, brush or shrubbery.
- (7) Any other substances, whether liquid, solid, organic, inorganic, and regardless of how or whether packaged, bottled or stored, commonly considered as waste product, hazardous or expired and past its useful life, or ineffective for such, or any other reasonable and commonplace use as a result of its condition.
- B. However, for purposes of this article, the term "rubbish" shall not include any of the foregoing if stored in containers or plastic container bags or, as applicable, tied in bundles, conforming to the packaging/storage, disposal and related requirements of any solid waste regulations of the Village or (if none, or not applicable) any other governmental authority having jurisdiction over the Village.
- An assembly of materials forming a construction framed of component structural parts, which exists for any occupancy or use.
The owner of real property in the Village shall be required to cut, trim and remove brush, grass, rubbish or weeds or to spray with herbicides, cut, trim, remove or destroy poisonous shrubs or weeds upon the premises and to mitigate or remove any accumulation of standing waters and correct all failures of general property maintenance, including when directed to such a condition or ordered to do so by a Village officer or authorized agent.
No person being the owner of improved real property in the Village of Phoenix shall permit or maintain any growth of grass, weeds or other general lawn areas ground cover growth (e.g., ivy, wildflower, or other special non-grass-like cover, and excepting any segregated flowered or landscaped garden, bed or similar areas) to a height more than six inches on any parts of said real property, whether occupied or unoccupied or on the area between the property line of an adjacent public highway or sidewalk and the pavement edge of the road. On vacant unimproved parcels not contiguous to a commonly owned improved parcel, all growths whatsoever (except for trees or bushes, the latter however having minimum branch or shoot width of six inches from ground level of not less than one inch) shall be maintained at a maximum height of eight inches.
[Amended 5-3-2016 by L.L. No. 2-2016]
The owner of real property in the Village shall not permit, maintain, deposit or scatter over the real property or other private property any rubbish.
The owner of real property in the Village shall maintain the exterior of every structure or accessory structure, including fences, in good repair, and all surfaces thereof shall be kept painted and finished where necessary for purposes of preservation and appearance. The same shall be maintained free of broken glass, loose shingles, crumbling stone or brick, excessive peeling of paint, graffiti or other conditions reflecting weathering or deterioration or inadequate maintenance. The standard to which same shall be maintained is that it shall reflect a reasonable level of maintenance in keeping with the standards of those adequately maintained properties typical of and within the local community and shall not constitute a blighting factor for adjoining or nearby property owners or a contributory element leading to the progressive deterioration of the neighborhood or local community.
The owner of real property in the Village shall ensure that all ground surface hazards and unsanitary conditions, holes, excavations, breaks, projections, objections and excretion of pets and other animals on paths, walks, steps, driveways, parking lots and parking areas and other parts of the real property normally accessible to and used by persons shall be filled and repaired or, where reasonably necessary, replaced and other such conditions removed as necessary to eliminate hazards or unsanitary conditions.
The owner of real property in the Village shall ensure that surface and subsurface waters of every kind, type and size (including, but not limited to, swimming pools, sump pump drains, or drainage and detention basins and ponds, man-made or otherwise) shall be maintained and controlled and, when drained, shall be drained in such a manner as to prevent damage to on-site and adjacent buildings and structures and to prevent the occurrence or continuance of stagnant waters causing offensive odors, growths, and/or appearances. Gutters, culverts, catch basins, drain inlets, stormwater and sanitary sewers or other satisfactory drainage systems shall be provided and utilized where necessary and appropriate. In no case, except where consistent with a previously established and unaltered natural drainagecourse, shall waters from any rain, storm or surface water drainage systems, or as a result of grading activities, be allowed to pool or settle on or flow over adjoining properties. In no case, except where expressly permitted by the Village or as part of a previously established natural drainage flow, shall waters from any rain, storm or surface water drainage systems, or as a result of grading activities, be allowed to pool or settle on or flow over adjoining properties, including any public sidewalks, streets, rights-of-way or other public property. The foregoing shall be in addition to and separate from any requirements under Chapter 164 of the Village Code relating to stormwater management and erosion and sediment control.
The owner of real property in the Village shall ensure that all structures and premises subject hereto shall be kept free of the following conditions: dead and dying trees, limbs or other natural growths which, by reason of rotting or deteriorating conditions or storm damage and weathering, constitute a hazard to persons on the real property or in the vicinity thereof, including adjacent and nearby properties; trees shall be kept pruned and trimmed to prevent such conditions; loose and overhanging objects and accumulations of ice and snow which, by reason of location above ground level, constitute a danger of falling on persons in the vicinity thereof.
The owner of real property in the Village shall ensure that such real property shall not violate any other provision of the Village Code, New York State or federal statutes or regulations promulgated thereunder and which include requirements or standards relative to the maintenance, repair, use, condition or related circumstance of real property, and including specifically, but without limitation, the New York Property Maintenance Code and other New York State Uniform Code provisions referenced/incorporated therein.
The owner of real property in the Village shall ensure that no smells, odors, fumes, smoke or the like which are or may be dangerous to the health of nearby persons or are generally objectionable to a reasonable person on or within nearby premises shall result from his/her occupation or use of the real property.
The owner of real property in the Village shall ensure that, in addition to the foregoing specific standards, no other condition shall exist on such property which constitutes or is defined as a nuisance under any other provisions of the Village Code, including, without limitation, such other provisions of the Village Code which may authorize the removal of a specifically described item, object or conditions on or affecting real property or the owners and occupants of adjacent or nearby real property [such as (but without limitation) abandoned vehicles] or which may require the cessation of or otherwise regulate abnormal or objectionable conditions on or about the real property and the like. The term "nuisance" shall also be held to embrace a public nuisance, as known at common law or in equity jurisprudence; i.e., condition(s) dangerous to human life or detrimental to health. Accordingly, and by way of example and not limitation, any building or erection, or part or cellar thereof, if overcrowded with occupants, or not provided with adequate ingress and egress to and from the same or the apartments thereof, or if not sufficiently supported, ventilated, sewered, drained, cleaned or lighted in reference to its intended or actual use, and/or if rendering the air or human food or drink thereon or on adjacent or nearby premises unsafe or unwholesome due to such condition(s), is prohibited.
No owner of any real property in the Village of Phoenix shall permit or allow to be permitted the accumulation of ice and snow on the sidewalks in front of his or her respective property during the wintertime. All such persons shall remove all such snow and/or ice from the sidewalks in front of his or her respective property during the wintertime and, when ice cannot be removed, cover the same with salt, sand or similar material in such a manner as to enable one to walk thereon with safety.
The owner of any real property in the Village of Phoenix shall ensure that no motor vehicle or trailer within such owner or occupant's control shall be stopped, parked or standing in a fire lane established pursuant to the Village Code or other applicable law and that no motor vehicle or trailer, owned, possessed by or registered to him or her, which is operable, unregistered or uninspected, or the registration or inspection of which has expired, or which is without valid and current license plates affixed to it, shall be parked or placed on the premises or the public sidewalks, streets or ways contiguous to or fronting such real property or in violation of Village Code Chapter 193.
In any case where a provision of this article is found to be in conflict with a provision of any applicable zoning, building, fire, safety or health ordinance or code, that provision which establishes the higher standard for the promotion and protection of the health and safety of the people shall prevail.
Nothing in this article shall be deemed to abolish, restrict or impair any other existing rights and remedies of the Village, its officers or agencies or of other governmental authorities or private persons relating to the subject matter hereof.
No license, permit, certificate of occupancy, registration, inspection or compliance or similar issuance shall constitute a conclusive defense against a violation hereunder, or of any other local ordinance applicable to the real property, any structure or premises or use of such structure or premises, nor shall any provision herein relieve any owner from complying with any such other provision, nor shall same preclude its enforcement by any official of the Village of Phoenix.
It is specifically found and provided herein that in remedying certain conditions related to or affecting the aesthetic/cosmetic appearance of real property, subject to the provisions of this article, certain remedies elected by the Village may address some aspects of the violation in a satisfactory manner; however, in many cases not improving or even worsening the appearance of the real property. Examples of same, without limitation, are: boarding over broken windows or doors or removing means of access (stairs) or construction barriers to same. In such cases, it having been determined that such remedy(ies) tend to increase the appearance of blight and thereby adversely impact the neighborhood, it shall be within the Village's discretion, reasonably based, in such cases to fashion such remedy(ies) as might improve the appearance of the premises. Accordingly, doors or windows may be replaced, real property exteriors painted or stained or otherwise finished, windows repaired or replaced, and landscape improved, provided that in doing so the Village shall take due and reasonable consideration of the cost of same, the need for such a remedy, the effect on improving neighborhood character, and the potential effect on market value of the real property as a result of same.
Service of notice.
Whenever the Village Clerk or other authorized employee or officer serves or causes the service of notice in the manner required hereinafter, citing a violation under this article and requiring an owner(s) to address any condition specified in § 99-4 in the manner required hereunder, such notice shall specify the place, manner and time (not less than 10 days from the giving of said notice) within which the Village Board shall conduct a hearing to review the same and to issue findings relative to this article and mandating, where so authorized, that such person or persons are responsible or liable, that such condition is or was in violation, that the violation otherwise is or was legitimate, that the work shall or was to be completed within the time allotted in such previously issued notice or findings, and such other consideration, review and findings as provided for at § 99-4 hereof.
The Village shall have two options with respect to such notice and commencement of a proceeding hereunder. Where it has determined that a clear violation exists, notice may be given under the general authority established under this Chapter 99. Notice in this manner shall set forth the required date of completion of the remedy and a date thereafter for a hearing. Such procedure potentially reduces the time within which a violation may be addressed by commencing the time within which it must be addressed by the owner from the date of service of notice. However, any action taken upon such notice by the Village prior to the time when the owner has been afforded a hearing shall be at the Village's expense should it later be determined the owner is not the responsible or liable party, the condition addressed was not at such hearing in violation, and/or the like. Otherwise, such notice shall set forth the alleged violation, responsible/liable owner and the date for a hearing, at which time same shall be established, and if established, an appropriate period within which the owner shall remedy the violation, and failing or refusing, when the Village may proceed.
Notice shall be served upon such owner or owners by registered or certified mail, addressed to his or their last known address, and/or posting of said notice on the premises and mailing a copy of said notice to the owner at the address or addresses as on file in the Village offices, on the same date as posted. In the event any other credible information of potential addresses may be known, or if the owner has a legal representative known to the Village, a copy of such notice shall also be mailed via regular or certified mail to such addresses or persons. The Village Board expressly finds that in many instances those responsible for abandoned and neglected properties intentionally avert service of legal process; therefore, notice on a respective owner shall be deemed sufficient where no proof of actual delivery or receipt exists and/or where no other evidence of a reasonable likelihood of receipt by the owner exists, provided the Village has documented reasonable good-faith efforts to ascertain the actual residence or business address or other official or legal address of the owner or representative and such evidence has been made part of the record of proceedings. The failure to, where required, register a rental property or timely obtain any inspections or certificates pertaining to the real property, including those for tenant assistance, and which would or might otherwise disclose contact information for the owner, may also be taken into account by the Village in determining the sufficiency of notice. In the event an owner, duly noticed, has failed to remedy the violation and appear for the hearing scheduled, a copy of the Village Board's findings following the hearing shall be served upon the owner in the same manner as required in this § 99-5A.
Emergency situations. Where violations existing on the real property are of such a nature as to constitute an imminent or immediate and serious threat to human health or safety or of significant property damage, unless abated immediately, or on shorter notice than otherwise permitted herein, the Village may either summarily and immediately cause the violation to be abated and/or order the owner to immediately correct the violation; and upon failure to do so within any time frame established, in the Village Board's own discretion, based upon the exigencies in that particular case, the condition may be abated otherwise pursuant and subject to the provisions of this article. In such case, service of notice shall be attempted diligently and in good faith, and including by telephone, facsimile, e-mail or attempts at personal delivery. The sufficiency of such notice to the owner shall be determined by the Village Board. In such cases where immediate, or near immediate, action has been required of the owner, failing which the Village Board has directed the violation be immediately addressed, the owner shall be entitled to the hearing established under § 99-5A within a reasonable time thereafter, and in any event before the Village Board may assess the owner or real property with such costs and expenses.
Repeat violations. Where the real property has been subject to a previous proceeding under § 99-5A involving one or more of the same owners and relative to the same or similar related or resultant type(s) of violation(s) or condition(s) within one year prior to the occurrence or recurrence of the violation subject of the instant proceeding, the Village may cause the violation to be immediately and summarily abated, or may order the owner to correct the violation or condition within a period of time of less duration than otherwise provided hereunder; however, not less than 24 hours; and upon the failure to do so, the condition may then be addressed pursuant to § 99-6A, subject to previous or then given Village Board authorization; and as if such notice and failure or refusal has already occurred, then such work may be immediately commenced. Absent such authorization, the costs of same shall not be assessed against the owner or real property until such actions are ratified by resolution of the Village Board.
Special notice provisions. In the event of contemplated action under §§ 99-5B or C, the requirement of notice pursuant to § 99-5A and of hearing, review and findings pursuant to § 99-7A are modified to require only such notice as is reasonable given the Village's knowledge of the actual location of and means of access to the owner and the exigency of circumstances (if under § 99-5B). In the case of repeat violations under § 99-5C, such notice shall describe in brief the violative condition and nature of the intended Village action, the specific chapter and section of the Village Code under which the Village proceeds (Chapter 99, repeat violation, § 99-5C); and such notice shall be prominently posted at any main, front, or driveway side entrance of the real property as soon as reasonably possible following authorization and not less than 24 hours prior to commencement of the Village work.
Whenever such notice(s) referred to in § 99-5 hereof has or have been served in the manner required under § 99-5, requiring an owner to address the violation as required under this Chapter 99, and if such owner shall neglect or fail to timely comply with the requirements of such notice or notices within the time provided therein, the Village, following Village Board Authorization previously or then given, may authorize the work to be done and/or perform same with its own or outside forces.
In addition to the foregoing, and the provisions of § 99-7 hereof, a first violation of § 99-4 of this article shall be deemed an offense; and upon such conviction, such offender may be punished by a fine not to exceed $250 or imprisonment of not more than 15 days, or both. For a repeat offender as defined under § 99-5C, the maximum penalty shall be two times that set forth in this section. In either case, each day that such violation shall continue shall constitute a separate violation.
The foregoing shall not be deemed the sole right and remedy of the Village relative to enforcement, and the Village may also, or alternatively, assert and pursue any other rights, any and all civil or criminal actions, proceedings or remedies available at law.
Special consideration. Special consideration may be given to individuals that are elderly or disabled. If it is determined that an individual cannot maintain a reasonable level of upkeep of the owner-occupied residence because the individual is elderly or disabled, may not have adequate financial resources and/or no capable person resides in the residence, enforcement may be suspended to give the person adequate time to correct the problem. Where the individual is a low-income individual and owns and occupies a residence, special consideration may be given to the person by providing adequate time to correct any significant and costly (to cure) violation. However, in the case of a low-income owner, if any of the violations relate to keeping grounds free from overgrowths of grass, bushes, weeds, trees, branches and the like, or from rubbish and debris, additional time to correct the problem shall not be provided.
Relief from enforcement. In addition to the foregoing special consideration, the Village Board of Trustees may also, for good cause shown, adopt a resolution dispensing with or relaxing enforcement of the foregoing provisions of this section and/or the assessment or collection of costs and penalties due to such enforcement. For purposes hereby, "good cause" may include, without limitation, the lack of actual notice to an owner, consideration of inadequate or defective service of notice, existence of landlord/tenant or similar relationship, or other circumstances where arguably the criteria set forth under § 99-4 may not have been clearly violated or perceived as violated but shall in any event consist only of grounds or circumstances under which the Village Board of Trustees has determined that enforcement may not be fair or equitable.
Upon the review by and findings of the Village Board of Trustees that the provisions of this Chapter 99, including in particular §§ 99-5 and 99-6, have been complied with or satisfied, and in the case of § 99-5B and C that, respectively, bona-fide exigent or repeat violation(s) conditions existed, the Village Board of Trustees may, in addition to authorizing the work, adopt a resolution authorizing that the costs incurred by the Village in enforcing the requirements of this Chapter 99 of the Village Code and performance of the work, including any legal, engineering and/or architectural services, any quantifiable internal administrative costs and any costs incurred such as for filing, postage, or service of process, be paid for out of the general Village funds appropriated by the Village Board of Trustees for such purpose. The Village shall be reimbursed for the cost of the work performed or services rendered by direction of the Village Board of Trustees, as herein provided, and for any penalties assessed under § 99-6B hereof by assessment and levy upon the lots or parcels of land wherein such work was performed or such services rendered, and the expenses so assessed shall constitute a lien and charge on the real property on which they are levied until paid or otherwise satisfied or discharged and shall be collected in the same manner and at the same time as other Village charges.
Appointment of ex-officio receiver of income. The Village Clerk may, with the approval of the Village Board of Trustees of the Village evidenced by a certified resolution, bring an action to be appointed receiver ex-officio of the rents and income of such property for the purpose of collecting the rents and income from such property and expending the same for the purpose of abating the conditions against which this article is directed or reimbursing the Village for same. The procedure and other legal steps shall be governed by the provisions of applicable state statutes.
Whenever the Village has ordered the reimbursement for the costs of the work performed or services rendered as hereinabove provided in § 99-7 by assessment and levy upon the lot or parcels of lands whereon such work was performed or such services rendered, the Village Clerk shall cause a notice of intent to levy such costs and expenses against said lots or parcels of land, in a form approved by resolution of the Village Board of Trustees from time to time hereinafter, to be sent to the County Tax Department for inclusion on the Village tax bill and in addition cause same to be recorded in the records of the County Clerk's office in order that such notice shall be indexed against the said premises or parcels of land as notice to subsequent transferees or others acquiring any interest in said lots or parcels of land of the intention by the Village to assess and levy the amount of such expenses upon said lots or parcels of land. Any recording or filing fees of the County Tax Department or County Clerk shall be included in the costs and expenses assessed and levied upon such lots or parcels.
The purpose of such remedy is to protect the Village and ensure payment in the event such charges are not or not timely added to the real property tax bill. Therefore, the failure of the Village Clerk to record such notice of intent to levy shall not, however, affect or impair the validity of any lien or assessment of such costs and expenses against such lots or parcels of land, the owner(s) thereof or any subsequent transferees or others acquiring any interest in such lots or parcels of land.