[HISTORY: Adopted by the Board of Trustees
of the Village of Phoenix as indicated in article histories. Amendments
noted where applicable.]
[Adopted 8-8-2007 by L.L. No. 5-2007]
The purpose of this article is to provide for
the health, safety, and general welfare of the citizens of the Village
of Phoenix through the regulation of nonstormwater discharges to the
municipal separate storm sewer system (MS4) to the maximum extent
practicable as required by federal and state law. This article establishes
methods for controlling the introduction of pollutants into the MS4
in order to comply with requirements of the SPEDES General Permit
for Municipal Separate Storm Sewer Systems. The objectives of this
article are as follows:
A.
To meet the requirements of the SPDES General Permit
for Stormwater Discharges from MS4s, Permit No. GP-02-02, as amended
or revised;
B.
To regulate the contribution of pollutants to the
MS4 since such systems are not designed to accept, process or discharge
nonstormwater wastes;
C.
To prohibit illicit connections, activities and discharges
to the MS4;
D.
To establish legal authority to carry out all inspection,
surveillance and monitoring procedures necessary to ensure compliance
with this article;
E.
To promote public awareness of the hazards involved
in the improper discharge of trash, yard waste, lawn chemicals, pet
waste, wastewater, grease, oil, petroleum products, cleaning products,
paint products, hazardous waste, sediment and other pollutants into
the MS4.
As used in this article, the following terms
shall have the meanings indicated:
Schedules of activities, prohibitions of practices, general
good housekeeping practices, pollution prevention and educational
practices, maintenance procedures, and other management practices
to prevent or reduce the discharge of pollutants directly or indirectly
to stormwater, receiving waters, or stormwater conveyance systems.
BMPs also include treatment practices, operating procedures, and practices
to control site runoff, spillage or leaks, sludge or water disposal,
or drainage from raw materials storage.
The Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), and any subsequent amendments thereto.
The designated Code Enforcement Officer of the Village of
Phoenix or any other officer of the Village of Phoenix duly appointed
for the purpose of enforcement of these provisions.
Activities requiring authorization under the SPDES Permit
for Stormwater Discharges from Construction Activity, GP-02-02, as
amended or revised. These activities include construction projects
resulting in land disturbance of one or more acres. Such activities
include but are not limited to clearing and grubbing, grading, excavating,
and demolition.
The New York State Department of Environmental Conservation.
A New York State-licensed professional engineer or licensed
architect.
Any material, including any substance, waste, or combination
thereof, which because of its quantity, concentration, or physical,
chemical, or infectious characteristics may cause, or significantly
contribute to, a substantial present or potential hazard to human
health, safety, property, or the environment when improperly treated,
stored, transported, disposed of, or otherwise managed.
Any drain or conveyance, whether on the surface or subsurface,
which allows an illegal discharge to enter the MS4, including but
not limited to:
Any conveyances which allow any nonstormwater
discharge, including treated or untreated sewage, process wastewater,
and wash water, to enter the MS4 and any connections to the storm
drain system from indoor drains and sinks, regardless of whether said
drain or connection had been previously allowed, permitted, or approved
by an authorized enforcement agency; or
Any drain or conveyance connected from a commercial
or industrial land use to the MS4 which has not been documented in
plans, maps, or equivalent records and approved by an authorized enforcement
agency.
Any direct or indirect nonstormwater discharge to the MS4, except as exempted in § 163-9 of this article.
A facility serving one or more parcels of land or residential
households, or a private, commercial or institutional facility, that
treats sewage or other liquid wastes for discharge into the groundwaters
of New York State, except where a permit for such a facility is required
under the applicable provisions of Article 17 of the Environmental
Conservation Law.
Activities requiring the SPDES Permit for Discharge from
Industrial Activities Except Construction, GP-98-03, as amended or
revised.
Municipal separate storm sewer system, a conveyance or system
of conveyances (including roads with drainage systems, municipal streets,
catch basins, curbs, gutters, ditches, man-made channels, or storm
drains):
A permit issued by EPA (or by a state under authority delegated
pursuant to 33 USC § 1342(b) — SPDES) that authorizes
the discharge of pollutants to waters of the United States, whether
the permit is applicable on an individual, group, or general area-wide
basis.
Any discharge to the MS4 that is not composed entirely of
stormwater.
Any individual, association, organization, partnership, firm,
corporation, or other entity recognized by law and acting as either
the owner or as the owner's agent.
Dredged spoil, filter backwash, solid waste, incinerator
residue, treated or untreated sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat
wrecked or discarded equipment, rock, sand and industrial, municipal,
and agricultural waste and ballast discharged into water which may
cause or might reasonably be expected to cause pollution of the waters
of the state in contravention of the standards.
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips.
Discharge compliance with water quality standards.
The condition that applies where a municipality has been notified
that the discharge of stormwater authorized under its MS4 permit may
have caused or has the reasonable potential to cause or contribute
to the violation of an applicable water quality standard. Under this
condition, the municipality must take all necessary actions to ensure
future discharges do not cause or contribute to a violation of water
quality standards.
303(d) listed waters. The condition in the municipality's
MS4 permit that applies where the MS4 discharges to a 303(d) listed
water. Under this condition, the stormwater management program must
ensure no increase of the listed pollutant of concern to the 303(d)
listed water.
Total maximum daily load (TMDL) strategy. The
condition in the municipality's MS4 permit where a TMDL, including
requirements for control of stormwater discharges, has been approved
by EPA for a water body or watershed into which the MS4 discharges.
If the discharge from the MS4 did not meet the TMDL stormwater allocations
prior to September 10, 2003, the municipality was required to modify
its stormwater management program to ensure that reduction of the
pollutant of concern specified in the TMDL is achieved.
The condition in the municipality's MS4 permit
that applies if a TMDL is approved in the future by EPA for any water
body or watershed into which an MS4 discharges. Under this condition,
the municipality must review the applicable TMDL to see if it includes
requirements for control of stormwater discharges. If an MS4 is not
meeting the TMDL stormwater allocations, the municipality must, within
six months of the TMDL's approval, modify its stormwater management
program to ensure that reduction of the pollutant of concern specified
in the TMDL is achieved.
A permit issued by the Department that authorizes the discharge
of pollutants to waters of the state.
Rainwater, surface runoff, snowmelt and drainage.
A list of all surface waters in the state for which beneficial
uses of the water (drinking, recreation, aquatic habitat, and industrial
use) are impaired by pollutants, prepared periodically by the Department
as required by Section 303(d) of the Clean Water Act. 303(d) listed
waters are estuaries, lakes and streams that fall short of state surface
water quality standards and are not expected to improve within the
next two years.
Total maximum daily load, the maximum amount of a pollutant
to be allowed to be released into a water body so as not to impair
uses of the water, allocated among the sources of that pollutant.
Water that is not stormwater, is contaminated with pollutants
and is or will be discarded.
This article shall apply to all water entering
the MS4 generated on any developed and undeveloped land unless explicitly
exempted by an authorized enforcement agency.
The Code Enforcement Officer of the Village
of Phoenix shall administer, implement, and enforce the provisions
of this article. Such powers or duties imposed upon the authorized
enforcement official may be delegated in writing by the Code Enforcement
Officer as may be authorized by the municipality.
This article is not intended to modify or repeal
any other ordinance, rule, regulation, or other provision of law.
The requirements of this article are in addition to the requirements
of any other ordinance, rule, regulation, or other provision of law,
and where any provision of this article imposes restrictions different
from those imposed by any other ordinance, rule, regulation, or other
provision of law, whichever provision is more restrictive or imposes
higher protective standards for human health or the environment shall
control.
The standards set forth herein and promulgated
pursuant to this article are minimum standards; therefore this article
does not intend or imply that compliance by any person will ensure
that there will be no contamination, pollution, or unauthorized discharge
of pollutants.
The provisions of this article are hereby declared
to be severable. If any provision, clause, sentence, or paragraph
of this article or the application thereof to any person, establishment,
or circumstances shall be held invalid, such invalidity shall not
affect the other provisions or application of this article.
A.
Prohibition of illegal discharges. No person shall discharge or cause to be discharged into the MS4 any materials other than stormwater except as provided in § 163-9A(1) below. The commencement, conduct or continuance of any illegal discharge to the MS4 is prohibited except as described as follows:
(1)
The following discharges are exempt from discharge
prohibitions established by this article, unless the Department or
the Village of Phoenix has determined them to be substantial contributors
of pollutants:
(a)
Water line flushing or other potable water sources.
(b)
Landscape irrigation or lawn watering.
(c)
Existing diverted stream flows.
(d)
Rising groundwater.
(e)
Uncontaminated groundwater infiltration to storm
drains.
(f)
Uncontaminated pumped groundwater.
(g)
Foundation or footing drains.
(h)
Crawl space or basement sump pumps.
(i)
Air-conditioning condensate.
(j)
Irrigation water.
(k)
Springs.
(l)
Water from individual residential car washing.
(m)
Natural riparian habitat or wetland flows.
(n)
Dechlorinated swimming pool discharges.
(o)
Residential street wash water.
(p)
Water from fire-fighting activities.
(2)
Discharges approved in writing by the Code Enforcement
Officer to protect life or property from imminent harm or damage,
provided that such approval shall not be construed to constitute compliance
with other applicable laws and requirements, and further provided
that such discharges may be permitted for a specified time period
and under such conditions as the Code Enforcement Officer may deem
appropriate to protect such life and property while reasonably maintaining
the purpose and intent of this article.
(3)
Dye testing in compliance with applicable state and
local laws is an allowable discharge, but requires a verbal notification
to the Code Enforcement Officer prior to the time of the test.
(4)
The prohibition shall not apply to any discharge permitted
under an SPDES permit, waiver, or waste discharge order issued to
the discharger and administered under the authority of the Department,
provided that the discharger is in full compliance with all requirements
of the permit, waiver, or order and other applicable laws and regulations,
and provided that written approval has been granted for any discharge
to the MS4.
B.
Prohibition of illicit connections.
(1)
The construction, use, maintenance or continued existence
of illicit connections to the MS4 is prohibited.
(2)
This prohibition expressly includes, without limitation,
illicit connections made in the past, regardless of whether the connection
was permissible under law or practices applicable or prevailing at
the time of connection.
(3)
A person is considered to be in violation of this
article if the person connects a line conveying sewage to the Village
of Phoenix's MS4, or allows such a connection to continue.
(4)
Improper connections in violation of this article
must be connected and redirected, if necessary, to an approved on-site
wastewater management system or the sanitary sewer system upon approval
of the Code Enforcement Officer of the Village of Phoenix.
(5)
Any drain or conveyance that has not been documented
in plans, maps or equivalent and which may be connected to the storm
sewer system shall be located by the owner or occupant of that property
upon receipt of written notice of violation from the Code Enforcement
Officer of the Village of Phoenix requiring that such locating be
completed. Such notice will specify a reasonable time period within
which the location of the drain or conveyance is to be determined,
that the drain or conveyance be identified as storm sewer, sanitary
sewer or other and that the outfall location or point of connection
to the storm sewer system, sanitary sewer system or other discharge
point be identified. Results of these investigations are to be documented
and provided to the Code Enforcement Officer of the Village of Phoenix.
No persons shall operate a failing individual
sewage treatment system in areas tributary to the Village of Phoenix's
MS4. A failing individual sewage treatment system is one which has
one or more of the following conditions:
A.
The backup of sewage into a structure;
B.
Discharges of treated or untreated sewage onto the
ground surface;
C.
A connection or connections to a separate stormwater
sewer system;
D.
Liquid level in the septic tank above the outlet invert;
E.
Structural failure of any component of the individual
sewage treatment system that could lead to any of the other failure
conditions as noted in this section; and
F.
Contamination of off-site groundwater.
A.
Upon notification to a person that he or she is engaged in one or more of activities listed in Subsection B which cause or contribute to violations of the Village of Phoenix's MS4 SPDES permit authorization, that person shall take all reasonable actions to correct such activities such that he or she no longer causes or contributes to violations of the Village of Phoenix's MS4 SPDES permit authorization.
B.
The following activities are subject to the requirements of Subsection A:
Every person owning property through which a
watercourse passes, or such person's lessee, shall keep and maintain
that part of the watercourse within the property free of trash, debris,
excessive vegetation and other obstacles that would pollute, contaminate
or significantly retard the flow of water through the watercourse.
In addition, the owner or lessee shall maintain existing privately
owned structures within or adjacent to a watercourse, so that such
structures will not become a hazard to the use, function or physical
integrity of the watercourse.
A.
Any person subject to an industrial or construction
activity NPDES or SPDES stormwater discharge permit shall comply with
all provisions of such permit. Proof of compliance with said permit
may be required in a form acceptable to the Code Enforcement Officer
prior to the allowing of discharges to the MS4.
B.
The operator of a facility, including construction
sites, required to have an NPDES or SPDES permit to discharge stormwater
associated with industrial activity shall submit a copy of the notice
of intent (NOI) to the Code Enforcement Officer at the same time the
operator submits the original NOI to the EPA or state DEC as applicable.
C.
The copy of the NOI may be delivered to the Code Enforcement
Officer either in person or by mailing it to:
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Notice of Intent to Discharge Stormwater
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Code Enforcement Officer
| |
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Village of Phoenix
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455 Main Street
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Phoenix, New York 13135
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D.
A person commits an offense if the person operates
a facility that is discharging stormwater associated with industrial
activity without having submitted a copy of the NOI to do so to the
Code Enforcement Officer.
A.
Best management practices. Where the Code Enforcement Officer has identified illicit discharges as defined in § 163-3 (Definitions) or activities contaminating stormwater as defined § 163-11, the Village of Phoenix may require implementation of best management practices (BMPs) to control those illicit discharges and activities.
(1)
The owner or operator of a commercial or industrial
establishment shall provide, at his or her own expense, reasonable
protection from accidental discharge of prohibited materials or other
wastes into the MS4 through the use of structural and nonstructural
BMPs.
(2)
Any person responsible for a property or premises which is, or may be, the source of an illicit discharge as defined in § 163-3 (Definitions) or an activity contaminating stormwater as defined in § 163-11 may be required to implement, at said person's expense, additional structural and nonstructural BMPs to reduce or eliminate the source of pollutant(s) to the MS4.
(3)
Compliance with all terms and conditions of a valid
SPDES permit authorizing the discharge of stormwater associated with
industrial activity, to the extent practicable, shall be deemed compliance
with the provisions of this section.
B.
Individual sewage treatment systems. Where individual sewage treatment systems are contributing to the Village of Phoenix being subject to the special conditions as defined in § 163-3 (Definitions) of this article, the owner or operator of such individual sewage treatment systems shall be required to:
(1)
Maintain and operate individual sewage treatment systems
as follows:
(a)
Inspect the septic tank annually to determine
scum and sludge accumulation. Septic tanks must be pumped out whenever
the bottom of the scum layer is within three inches of the bottom
of the outlet baffle or sanitary tee, or the top of the sludge is
within 10 inches of the bottom of the outlet baffle or sanitary tee;
(b)
Avoid the use of septic tank additives;
(c)
Avoid the disposal of excessive quantities of
detergents, kitchen wastes, laundry wastes, and household chemicals;
and
(d)
Avoid the disposal of cigarette butts, disposable
diapers, sanitary napkins, trash and other such items.
(2)
Repair or replace individual sewage treatment systems
as follows:
(a)
In accordance with 10 NYCRR, Appendix 75A, to
the maximum extent practicable;
(b)
A design professional licensed to practice in
New York State shall prepare design plans for any type of absorption
field that involves:
(c)
A written certificate of compliance shall be
submitted by the design professional to the Village of Phoenix at
the completion of construction of the repair or replacement system.
A.
Right of entry; inspection and sampling. The Village
Code Enforcement Officer or his designee shall be permitted to enter
and inspect facilities subject to regulation under this article as
often as may be necessary to determine compliance with this article.
(1)
If a discharger has security measures in force which
require proper identification and clearance before entry into its
premises, the discharger shall make the necessary arrangements to
allow access to representatives of the Village Code Enforcement Officer.
(2)
Facility operators shall allow the Code Enforcement
Officer ready access to all parts of the premises for the purposes
of inspection, sampling, examination and copying of records that must
be kept under the conditions of an NPDES or SPDES permit to discharge
stormwater, and the performance of any additional duties as defined
by state and federal law.
(3)
The Code Enforcement Officer or his designee shall
have the right to set up on any permitted facility such devices as
are necessary, in the opinion of the Code Enforcement Officer, to
conduct monitoring and/or sampling of the facility's stormwater discharge.
(4)
The Code Enforcement Officer or his designee has the
right to require the discharger to install monitoring equipment as
necessary. The facility's sampling and monitoring equipment shall
be maintained at all times in a safe and proper operating condition
by the discharger at its own expense. All devices used to measure
stormwater flow and quality shall be calibrated to ensure their accuracy.
(5)
Any temporary or permanent obstruction to safe and
easy access to the facility to be inspected and/or sampled shall be
promptly removed by the operator at the written or oral request of
the Code Enforcement Officer or his designee and shall not be replaced.
The costs of clearing such access shall be borne by the operator.
(6)
Unreasonable delays in allowing the Code Enforcement
Officer or his designee access to a permitted facility is in violation
of a stormwater discharge permit and of this article. A person who
is the operator of a facility with an NPDES or SPDES permit to discharge
stormwater associated with industrial activity commits an offense
if the person denies the Village Code Enforcement Officer or his designee
reasonable access to the permitted facility for the purpose of conducting
any activity authorized or required by this article.
B.
Search warrants. If the Code Enforcement Officer or
his designee has been refused access to any part of the premises from
which stormwater is discharged, and he/she is able to demonstrate
probable cause to believe that there may be a violation of this article,
or that there is a need to inspect and/or sample as part of a routine
inspection and sampling program designed to verify compliance with
this article or any order issued hereunder, or to protect the overall
public health, safety, and welfare of the community, then the Code
Enforcement Officer may seek issuance of a search warrant from any
court of competent jurisdiction.
Notwithstanding other requirements of law, as
soon as any person responsible for a facility or operation, or responsible
for emergency response for a facility or operation, has information
of any known or suspected release of materials which are resulting
or may result in illegal discharges or pollutants discharging into
the MS4, said person shall take all necessary steps to ensure the
discovery, containment, and cleanup of such release. In the event
of such release of hazardous materials, said person shall immediately
notify emergency response agencies of the occurrence via emergency
dispatch services. In the event of a release of nonhazardous materials,
said person shall notify the Village of Phoenix in person or by telephone
or facsimile no later than the next business day. Notifications in
person or by telephone shall be confirmed by written notice addressed
and mailed to the Village of Phoenix within three business days of
the telephone notice. If the discharge of prohibited materials emanates
from a commercial or industrial establishment, the owner or operator
of such establishment shall also retain an on-site written record
of the discharge and the actions taken to prevent its recurrence.
Such records shall be retained for at least three years.
A.
Violations.
(1)
It shall be unlawful for any person to violate any
provision or fail to comply with any of the requirements of this article.
Any person who has violated or continues to violate the provisions
of this article may be subject to the enforcement actions outlined
in this section or may be restrained by injunction or otherwise abated
in a manner provided by law.
(2)
In the event the violation constitutes an immediate danger to public health or public safety, the Code Enforcement Officer or his designee is authorized to enter upon the subject private property, without giving prior notice, to take any and all measures necessary to abate the violation and/or restore the property. The Code Enforcement Officer is authorized to seek costs of the abatement as outlined § 163-20.
B.
Warning notice. When the Code Enforcement Officer
or his designee finds that any person has violated, or continues to
violate, any provisions of this article, or any order issued hereunder,
the Code Enforcement Officer or his designee may serve upon that person
a written warning notice, specifying the particular violation believed
to have occurred and requesting the discharger to immediately investigate
the matter and to seek a resolution whereby any offending discharge
will cease. Investigation and/or resolution of the matter in response
to the warning notice in no way relieves the alleged violator of liability
for any violations occurring before or after receipt of the warning
notice. Nothing in this subsection shall limit the authority of the
Village Code Enforcement Officer or his designee to take any action,
including emergency action or any other enforcement action, without
first issuing a warning notice.
C.
Notice of violation.
(1)
Whenever the Code Enforcement Officer or his designee
finds that a person has violated a prohibition or failed to meet a
requirement of this article, the Code Enforcement Officer or his designee
may order compliance by written notice of violation to the responsible
person. The notice shall contain:
(a)
The name and address of the alleged violator;
(b)
The address, when available, or a description
of the building, structure or land upon which the violation is occurring
or has occurred;
(c)
A statement specifying the nature of the violation;
(d)
A description of the remedial measures necessary
to restore compliance with this article and a time schedule for the
completion of such remedial action;
(e)
A statement of the penalty or penalties that
shall or may be assessed against the person to whom the notice of
violation is directed;
(f)
A statement specifying that, should the violator
fail to restore compliance within the established time schedule, the
work will be done by a designated governmental agency or a contractor,
and the expense thereof shall be charged to the violator.
(2)
Such notice may require without limitation:
(a)
The performance of monitoring, analysis, and
reporting;
(b)
The elimination of illicit connections or discharges;
(c)
That violating discharges, practices, or operations
shall cease and desist;
(d)
The abatement or remediation of stormwater pollution
or contamination hazards and the restoration of any affected property;
(e)
Payment of a fine to cover administrative and
remediation costs; and
(f)
The implementation of source control or treatment
BMPs.
D.
Compensatory action. In lieu of enforcement proceedings,
penalties, and remedies authorized by this article, the Code Enforcement
Officer or his designee may impose upon a violator alternative compensatory
actions, such as (without limitation) storm drain stenciling, attendance
at compliance workshops, creek cleanup, etc.
E.
Suspension of MS4 access.
(1)
Emergency cease and desist orders. When the Code Enforcement
Officer or his designee finds that any person has violated or continues
to violate any provision of this article, or any order issued hereunder,
or that the person's past violations are likely to recur, and that
the person's violation(s) has (have) caused or contributed to an actual
or threatened discharge to the MS4 or waters of the United States
which reasonably appears to present an imminent or substantial endangerment
to the health or welfare of persons or to the environment, the Code
Enforcement Officer or his designee may issue an order to the violator
directing them immediately to cease and desist all such violations
and directing the violator to immediately comply with all law requirements;
and take such appropriate preventative action as may be needed to
properly address a continuing or threatened violation, including immediately
halting operations and/or terminating the discharge. Any person notified
of an emergency order directed to it under this subsection shall immediately
comply and stop or eliminate its endangering discharge. In the event
of a discharger's failure to immediately comply voluntarily with the
emergency order, the Code Enforcement Officer or his designee may
take such steps as deemed necessary to prevent or minimize harm to
the MS4 or waters of the United States, and/or endangerment to persons
or to the environment, including immediate termination of a facility's
water supply, sewer connection, or other municipal utility services.
The Code Enforcement Officer or his designee may allow the person
to recommence its discharge when it has demonstrated to the satisfaction
of the Code Enforcement Officer that the period of endangerment has
passed, unless further termination proceedings are initiated against
the discharger under this article. A person that is responsible, in
whole or in part, for any discharge presenting imminent endangerment
shall submit a detailed written statement describing the causes of
the harmful discharge and the measures taken to prevent any future
occurrence to the Code Enforcement Officer or his designee within
10 days of receipt of the emergency order. Issuance of an emergency
cease and desist order shall not be a bar against or a prerequisite
for taking any other action against the violator.
(2)
Suspension due to illicit discharges in emergency
situations. The Code Enforcement Officer or his designee may, without
prior notice, suspend MS4 discharge access to a person when such suspension
is necessary to stop an actual or threatened discharge which presents
or may present imminent and substantial danger to the environment,
or to the health or welfare of persons, or to the MS4 or waters of
the United States. If the violator fails to comply with a suspension
order issued in an emergency, the Code Enforcement Officer or his
designee may take such steps as deemed necessary to prevent or minimize
damage to the MS4 or waters of the United States, or to minimize danger
to persons.
(3)
Suspension due to the detection of illicit discharge.
(a)
Any person discharging to the MS4 in violation
of this article may have his or her MS4 access terminated if such
termination would abate or reduce an illicit discharge. The Code Enforcement
Officer or his designee will notify a violator of the proposed termination
of its MS4 access.
(b)
A person commits an offense if the person reinstates
MS4 access to premises terminated pursuant to this section without
the prior approval of the Code Enforcement Officer or his designee.
F.
Civil penalties. In the event the alleged violator
fails to take the remedial measures set forth in the notice of violation
or otherwise fails to cure the violations described therein within
20 days, or such greater period as the Code Enforcement Officer or
his designee shall deem appropriate, the Code Enforcement Officer
or his designee may impose a penalty not to exceed $500 (depending
on the severity of the violation) for each day the violation remains
unremedied after receipt of the notice of violation.
G.
Criminal prosecution. Any person that has violated
or continues to violate this article shall be liable to criminal prosecution
to the fullest extent of the law, and shall be subject to a criminal
penalty of $500 per violation per day and/or imprisonment for a period
of time not to exceed 60 days. Each act of violation and each day
upon which any violation shall occur shall constitute a separate offense.
Any person receiving a notice of violation may
appeal the determination of the Code Enforcement Officer or his designee
to the Village of Phoenix within 15 days of its issuance, which shall
hear the appeal within 30 days after the filing of the appeal, and
within five days of making its decision, file its decision in the
office of the Village Clerk and mail a copy of its decision by certified
mail to the discharger.
A.
If the violation has not been corrected pursuant to
the requirements set forth in the notice of violation, or, in the
event of an appeal, within five business days of the decision of the
Village of Phoenix authority upholding the decision of the Code Enforcement
Officer or his designee, then the Code Enforcement Officer or his
designee shall request the owner's permission for access to the subject
private property to take any and all measures reasonably necessary
to abate the violation and/or restore the property.
B.
If refused access to the subject private property,
the Code Enforcement Officer or his designee may seek a warrant in
a court of competent jurisdiction to be authorized to enter upon the
property to determine whether a violation has occurred. Upon determination
that a violation has occurred, the Code Enforcement Officer or his
designee may seek a court order to take any and all measures reasonably
necessary to abate the violation and/or restore the property. The
cost of implementing and maintaining such measures shall be the sole
responsibility of the discharger.
A.
Not later than 90 days after abatement of the violation,
the owner of the property will be notified of the cost of abatement,
including administrative costs. The property owner may file a written
objection to the assessment within 10 days after notification with
the Board. If the amount due is not paid within the later of 30 days
from such notification or the date of the Village Board's decision
or the objection, the charges shall become a special assessment against
the property and shall constitute a lien on the property for the amount
of the assessment. Such assessment shall be binding upon any purchaser
or transferee taking title after the abatement but before the assessment
is filed.
B.
Any person violating any of the provisions of this
article shall become liable to the Village of Phoenix by reason of
such violation.
[Added 4-16-2019 by L.L.
No. 1-2019]
A.
In the event the Village Board, in its sole discretion, determines to establish and offers to and for the mutual benefit of the Village generally, and to all or certain specified Village residents, property owners, and/or other persons having similar legal rights and responsibilities as property owners under this Chapter 163 (and where not so specified as applicable to all such persons or Village residents), then based only upon common characteristics such as the nature or location of violate conditions or property locations, such class' contributions to and/or effect upon the system or infrastructure of such residents' or customers' use of their private or connecting and transmitting components on the system affected thereby needing to be addressed, a capital repair or replacement public works project addressing in whole or part of its public infrastructure relating to or affecting its stormwater management, and which may include addressing violations due to deficient, illegally connected, operated, inflowing or infiltrating private owner infrastructure, including from public or private sanitary sewer infrastructure under ownership, control or for which the owner is legally or contractually liable or responsible adversely affecting private or public storm sewer infrastructure or systems otherwise, a Village-sponsored finance program, a publicly or agency financed or subsidized scope of work, including, in part, the abatement of private owner violations whereby the work shall be performed as a public works project, paid in full by such financing or subsidy and with the expense of abatement of a private owner violation(s), are to be assessed as annual levies in the same manner as Village taxes to the owner(s), based upon a proportionate share of the total project or subproject cost, interest rate imposed upon financing, and the applicable useful life of the abatement measures performed per the New York State Local Finance Law or agency finance program requirements.
B.
For purposes hereof:
(1)
The selection of a certain class of eligible owners may be set
by the Village Board, provided that the criteria for selection is
made public and articulated in a Village Board resolution duly adopted
in open session not less than 20 days prior to the first date when
actions other than the preliminary acts required for seeking agency
funding or the issuance of a bond resolution and anticipation notes
for payment or reimbursement to the Village for preliminary reports
and studies and concept designs are to commence; and
(2)
The selection of a class of owners that are required or are
eligible for inclusion in the program may be based upon any criteria
or grounds that are not an illegal basis for selection under local,
state or federal law, including those requirements as may be applicable
as a result of the source of any agency funding assistance; accordingly,
selection based upon owners with private infrastructure issues that
significantly or more significantly and adversely affect the Village
storm or sanitary collection systems or stormwater management; same
may also, however, without limitation, include addressing violations
that exist due to deficient, illegally connected, operated, inflowing
or infiltrating private owner infrastructure, or from public or private
sanitary sewer infrastructure under ownership, control or for which
an owner is otherwise legally or contractually liable or responsible
adversely.
C.
A material condition precedent to eligibility for any such program shall be that an owner voluntarily allows inspection of the premises by the Village and any retained professional consultants or contractors, such that the Village is not required to expend time and monies to obtain and execute a search warrant or to execute other enforcement measures; likewise, the owner shall disclose in full any violate conditions, patent or latent, which are or should be or have been evident to the owner. Any other dilatory tactics causing undue expense or delay, however expressly not including the appeal an owner may be entitled to under § 163-19 hereof, may, in the Village Board's sole discretion, disqualify an owner from eligibility for the program.
D.
Such owner shall, as a condition precedent to eligibility, grant
to the Village such temporary and/or permanent easement(s) as are
determined to be reasonably necessary by the Village, if any, so as
to permit:
(1)
The Village to perform, install and/or construct, or have performed,
installed and/or constructed to completion, the applicable abatement
measures, including to permit access to the owner's property
during any punch list or warranty/guaranty periods; and
(2)
The Village, its contractors and equipment such access and use
as necessary to maintain, repair or replace that portion of the abatement
measures located within the right-of-way, and/or to determine if any
blockage, leak or similar problem is located within, arises from,
or is otherwise related to that portion of the infrastructure located
within the right-of-way, or arises from the owner's premises
or that part of the infrastructure which the owner is responsible
for.
(3)
Any owner seeking to exercise or enforce any rights hereunder
as against the Village or otherwise opposing, objecting to or contesting
the Village's easement rights as required to be granted hereunder
may not sustain such claim if having neglected or refused, after mandatory
Village selection or voluntary election by such owner, acceptance
by the Village into the program and in reliance thereon the Village
having performed, paid for, or authorized any work which the Village
shall be legally responsible for the payment of, or having any other
expense incidental or relating to such owner's violation, including,
without limitation, incurring of expenses and/or performance of work
on a project that, due in significant part to the owner's failure
or refusal to grant such easement, shall suffer significant time delay,
increase in project costs or be no longer an effective project relative
to its projected effect in mitigating violation conditions, and as
a result requiring suspension, cancellation or material modification
of the project and work required; by the acceptance of project benefits,
regardless of whether by selection or Village mandate, any such owner
shall be deemed to have granted the required easement notwithstanding
its failure to execute or deliver the required easement instrument(s)
or to otherwise perform and abide by the provisions hereof or under
the standard easement instrument proposed for execution.
E.
Notwithstanding the provisions hereof related to the easement granted
for access onto privately owned premises, the Village's obligation
for repair, replacement and abatement of its public system, including
and in addition, in this case, such portion of the related infrastructure
on private premises or otherwise the responsibility of the private
owner, aside from the performance and construction/installation of
the capital abatement measures, the Village shall otherwise not be
so obligated, and the same shall be and remain the sole obligation
and duty of the owner, for and to the extent any such need or request
for eligibility, abatement or warranty/guarantee work arises, and
has arisen or first been complained of within the period(s) when any
Village property taxes, sewer, water or refuse charges or rents are
outstanding, or interests/penalties and/or assessments for the capital
improvements contemplated herein are delinquent; provided, however,
that the payment of such delinquencies in full, together with all
interest and penalties shall effect a resumption of the Village's
obligations from such date of delivery through expiration of the warranty
period.
F.
Each owner/violator subjecting itself to the provisions hereof acknowledges
by its signature on the agreement contemplated hereby that it has
read and fully understands this section and the agreement based hereby.
Further, such person has requested and accordingly has, where felt
necessary, sought assistance of legal counsel for explanation/ interpretation
of any provisions or parts thereof which the owner/violator does not
completely and clearly understand. The owner expressly acknowledges
that, whilel of benefit to the owner this agreement also benefits
the Village of Phoenix and taxpayers generally by imposing a uniformity
in construction materials beautified and quality of construction and
as such he tends to one's undertaking the project to replace
all laterals and related infrastructure regardless of the existing
infrastructure's lack of visible defects, it being deemed more important
to have the work completed using like materials, the same contractors
and having the same or cheaper versions available in the event of
a defective design or construction.
In addition to the enforcement processes and
penalties provided, any condition caused or permitted to exist in
violation of any of the provisions of this article is a threat to
public health, safety, and welfare, and is declared and deemed a nuisance,
and may be summarily abated or restored at the violator's expense,
and/or a civil action to abate, enjoin, or otherwise compel the cessation
of such nuisance may be taken.
The remedies listed in this article are not
exclusive of any other remedies available under any applicable federal,
state or local law, and it is within the discretion of the authorized
enforcement agency to seek cumulative remedies.
This article shall take effect upon its filing
in the office of the Secretary of State.
