[HISTORY: Adopted by the City Council of the City of Newburgh 9-29-2009 by L.L. No.
2-2009. Amendments noted where applicable.]
The City Council of the City of Newburgh finds that public nuisances
exist in the City of Newburgh in the uses and operation of certain
establishments and the use of property in flagrant violation of the
penal and building and safety and other laws relating to controlled
substances, dangerous drugs, prostitution, gambling, trespass, vandalism,
stolen property and illegal use or possession of weapons, as well
as other provisions of state and local law, all of which substantially
and seriously interfere with the interest of the public in the quality
of life and total community environment, commerce in the City, property
values and the public health, safety and welfare. The City Council
further finds that the occurrence of such activities and violations
is detrimental to the health, safety and welfare of the City of Newburgh
and to the residents and businesses thereof and visitors thereto.
It is the purpose of this chapter to authorize and empower the authorized
officers and officials of the City of Newburgh to impose sanctions
and penalties for such public nuisances. Such powers may be exercised
either in conjunction with, in addition to, or apart from, the powers
contained in other laws without prejudice to the use of procedures
and remedies available under such other laws. The City Council further
finds that the sanctions and penalties imposed pursuant to this chapter
constitute an additional and appropriate method of law enforcement
in response to the proliferation of the above-described public nuisances.
The sanctions and penalties contained herein are reasonable and necessary
in order to protect the health and safety of the people of the City
of Newburgh and to protect and promote the general welfare.
The terms used in this chapter shall have the following meanings,
unless otherwise defined herein:
The City of Newburgh in the State of New York.
The City Manager of the City of Newburgh and/or the person
duly authorized by the City Manager.
The senior-most manager of a unit of government of the City
of Newburgh or the duly authorized designee of such person.
The person or entity who or which is listed as mortgagee
on any unsatisfied and/or otherwise open mortgage on the premises
recorded in the office of the Orange County Clerk.
A person vested with legal ownership or control over any
property or facility or any part thereof located in the City of Newburgh;
or any person vested with responsibility therefor by such owner, including
but not limited to an owner of fee title, manager, supervisor, superintendent,
agent, custodian, tenant, squatter, roommate, guest, mortgagee, landlord
or other such person.
A person occupying or using property without the consent
of the owner thereof.
A.
The term "nuisance" shall be held to embrace whatever is dangerous
to human life or detrimental to health or welfare and shall include
but not be limited to a particular building, structure, improvement,
location or place whereat violations of the following provisions of
laws, rules and regulations have occurred, are occurring, exist or
have been or are allowed to exist within the immediately preceding
twelve-month period in the amount and/or number specified:
(1)
Any one public nuisance as known, described, and/or defined under
common law, statutory law, case law or in equity jurisprudence.
(2)
Any building, structure, improvement, location or place wherein there
is occurring any one or more criminal nuisances as defined in § 240.45
of the Penal Law of New York State (criminal nuisance in the second
degree; unlawful, reasonable conduct knowingly or recklessly endangering
the safety or health of a number of persons; or maintaining premises
where persons gather to engage in unlawful conduct).
(3)
Any one of any violations of any of the provisions of Article 39
of the General Business Law of New York State (possession, manufacture
and/or sale of drug-related paraphernalia).
(4)
Any building, structure, improvement, location or place used for
the purpose of any one business activity or enterprise which is not
licensed as required by law.
(5)
Two or more violations of any of the provisions of one or more of
the following laws, separately or in combination; including but not
necessarily at the same time:
(a)
Article 220 of the Penal Law (controlled substances offenses).
(b)
Article 221 of the Penal Law (offenses involving marihuana).
(c)
Article 225 of the Penal Law (gambling offenses).
(d)
Article 230 of the Penal Law (prostitution offenses).
(e)
Sections 165.40, 165.45, 165.50, 165.52 and 165.54 of the Penal
Law (criminal possession of stolen property).
(f)
Section 65 or 82 of the Alcoholic Beverage Control Law.
(g)
Article 265 of the Penal Law (firearms and other dangerous weapons).
(h)
Sections 260.20 and 260.21 of the Penal Law (unlawfully dealing
with a child).
(i)
Article 263 of the Penal Law (sexual performance by a child).
(j)
Section 415-a of the Vehicle and Traffic Law (vehicle dismantlers).
(k)
Section 175.10 of the Penal Law (falsifying business records).
(l)
Sections 170.65 and 170.70 of the Penal Law (forgery of and
illegal possession of a vehicle identification number).
(m)
Possession, use, sale, or offer of 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.
(n)
Article 178 of the Penal Law (criminal diversion of prescription
medications and prescriptions).
(o)
Section 147 of the Social Services Law (food stamp program fraud).
(p)
Operating a business during hours when the business is required to be closed pursuant to Chapter 300 of the City Code, the Zoning Ordinance of the City of Newburgh.
(q)
Any section of the Agriculture and Markets Law of the State
of New York and/or of the Code of the City of Newburgh prohibiting
the improper keeping and care of any animal(s); or the collection
and hoarding thereof.
B.
For purposes of this chapter, a conviction for an offense in a court
of competent jurisdiction or an administrative bureau shall not be
required. Instead, the City shall prove by a preponderance of the
evidence at a proceeding brought under this chapter that the violations
have occurred. However, a conviction as defined and applied in accordance
with the provisions of § 1.20 of the Criminal Procedure
Law, in any court of competent jurisdiction, shall constitute conclusive
proof of a violation. Conviction of an attempt to commit a violation
of any of the specified provisions shall be considered a conviction
for a violation of the specified provision for the purposes of this
chapter.
C.
A nuisance shall also be deemed to exist on or in any premises or
property which meets and/or satisfies the conditions described below:
(1)
Any building, structure, improvement, location or place containing
any one rent impairing violation as defined in the New York State
Multiple Residence Law and regulations promulgated thereunder, regardless
of whether such building, structure, erection or place is subject
to the New York State Multiple Residence Law, or any one violation
of any state or local law, ordinance or regulation which endangers
human life or constitutes a threat to human life or health, including
but limited to structures which do not have adequate egress, safeguards
against fire, adequate electrical service, installation and wiring,
structural support, ventilation, plumbing, sewerage or drainage facilities,
is overcrowded or inadequately cleaned or lighted; or
(2)
Any building, structure, improvement, location or place in which
has occurred six or more violations of any of the provisions of the
Building Code of the State of New York and/or of the provisions of
the City Code of the City of Newburgh pertaining to property maintenance
and/or sanitation; or
(3)
Any building, structure, improvement, location or place in which has occurred any one or more violations of any of the provisions of any of the laws listed under Subsection A(5) hereinabove and any three or more violations of any of the provisions of any of the laws, codes or regulations listed under Subsection C(2) hereinabove.
D.
The building, structure, erection or place which is deemed abandoned
in that it has been unoccupied for more than one year and one or more
of the following conditions exist:
(1)
There are unpaid real property taxes or water and sewer charges or
fines or penalties due and owing to the City in whole or in part against
the property for one year or more.
(2)
Trash, garbage, junk or debris has accumulated on the property or
in the building or structure.
(3)
The building or structure has unsecured openings.
(4)
There is evidence of insect, vermin or rodent infestation.
(5)
The building or structure has a negative visual impact on the surrounding
neighborhood and/or caused a substantial depreciation in property
values in the immediate neighborhood.
(6)
The building or structure contains one or more violations of any
state or local law, ordinance or regulation, and the owner has failed
to remove or repair said building or structure for a period of one
year or more.
E.
Any building, structure, erection or place used for congregate housing
for students or others which has been the subject of two or more complaints
to City Administration, City Code Enforcement or City Police Department
within the most recent past six-month period, which have been confirmed
and verified by the City Administration or Police Department, for
disturbing the surrounding neighborhood by excessive noise and/or
holding large parties, which have resulted in excessive noise, garbage
and litter, destruction of neighborhood property, increased traffic
and parking violations, abusive and threatening conduct to neighbors
and/or illegal sale and consumption of alcoholic beverages and/or
controlled substances.
In addition to the enforcement procedures established elsewhere
in this chapter and in other laws, codes, rules and regulations, the
City Manager, Chief of Police, and/or the Code Compliance Supervisor,
after notice and opportunity for a hearing, to be provided to the
owner, shall be authorized:
A.
To order the immediate discontinuance of such activity at the premises
where such public nuisance exists; and/or
B.
To order the immediate closing of the premises to the extent and
for such time as is necessary to abate the public nuisance, including
but not limited to the erection of barriers and otherwise securing
the property against use or entry by any person or persons. The cost
to the City incurred for the erection of such barriers and/or the
reasonable provision of any other security measures shall be a charge
upon the property. After said charge shall have been duly demanded
of the owner and shall have gone unpaid in whole or in part, the City
shall have the right to relevy any unpaid amounts as a tax upon the
property and may enforce payment in the same manner provided by law
for the nonpayment of taxes.
A.
It shall be the duty of the authorized officials of the City, including
but not limited to the Supervisor of Code Compliance, the Police Chief,
the Fire Chief and their designees to investigate all nuisances complained
of and report to the City Manager action as may be necessary. The
authorized official of the City shall, in making such report, give
the location of the property or properties whereon the nuisance exists,
together with the nature, character and cause of the nuisance.
B.
At the expiration of the time set by a notice served in accord with
this chapter for the abatement of a nuisance, the authorized official
of the City shall reinspect the nuisance and report to the City Manager
what actions, if any, have been taken in the premises to abate the
nuisance.
A.
Whenever any nuisance is found to exist by the officers so authorized
by City law and code, they shall issue an order to abate such nuisance.
Such order shall be directed by regular United States Mail to the
owner of the premises upon which the nuisance exists and to the persons
committing or responsible for such nuisance, and shall be prominently
posted upon the premises.
B.
The order to abate a nuisance shall specify the time within which
the nuisance is to be removed or otherwise abated by the persons to
whom the order is directed. Such order may include a requirement to
immediately discontinue the activities constituting the nuisance or
the closing of the premises to the extent necessary to abate the nuisance,
or both.
C.
In all cases of nuisances to be abated by the agent, occupiers or
owners of property, who have been notified to that effect, they shall
complete the abatement within the time prescribed in the order or
notice,
D.
The lack of knowledge of, acquiescence or participation in, or responsibility
for a public nuisance on the part of the owner, lessors, lessees,
agents, mortgagees 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 or other person.
[Amended 1-10-2011 by L.L. No. 1-2011]
The authorized officials of the City, having properly served parties who have committed or are responsible for a nuisance, may abate such nuisance after the expiration of the time limit provided in such notice and assess a lien against the property for the costs of such abatement, together with an administrative fee of 15%, pursuant to the procedures set forth in Chapter 226 of the City Code.
A.
In addition to all other remedies provided for by law and in the
City of Newburgh Code of Ordinances, as an additional supplemental
remedy, the Corporation Counsel may bring and maintain a civil proceeding
in the name of the City in the Newburgh City Court or other court
of competent jurisdiction pursuant to Article 63 of the Civil Practice
Law and Rules to permanently enjoin the nuisance defined in this chapter
and the person or persons conducting, maintaining or permitting the
nuisance from further conducting, maintaining or permitting the nuisance.
The owner, lessor and lessee of a building, structure, erection or
place wherein the nuisance is being conducted, maintained or permitted
may be made defendants in the action. The existence of an adequate
remedy at law shall not prevent the granting of temporary or permanent
relief pursuant to this chapter. During the pendency of such proceeding,
the City may obtain a temporary order for the immediate vacating of
such building, structure, erection or place and/or restraining the
defendants and all persons from further conducting, maintaining or
permitting the nuisance upon proof that the public health, safety
or welfare is threatened or endangered and immediately require a closing
of said building, structure, improvement, location or place or order
restraining defendants and all other persons from conducting, maintaining
or permitting the nuisance.
B.
Notice of pendency. With respect to any action commenced or to be
commenced by him or her pursuant to this chapter, the Corporation
Counsel may file a notice of pendency pursuant to the provisions of
Article 65 of the Civil Practice Law and Rules.
C.
Penalty; costs of action; costs of abatement of nuisance. If, upon
the trial of an action under this chapter, or upon a motion for summary
judgment in an action under this chapter, a finding is made that the
defendants have intentionally conducted, maintained or permitted a
nuisance defined in this chapter, in addition to a permanent injunction,
the following penalties and costs, to be included in the judgment,
may be awarded in favor of the City against any and all such defendants,
jointly and severally, in an amount not to exceed $1,000 for each
day it is found that the defendants intentionally conducted, maintained
or permitted the nuisance, and the actual costs including charges,
expenses and legal and attorneys' fees of bringing the action;
and the actual costs and expenses, including wages, consulting fees,
equipment and materials and other costs related to the action undertaken
by the City to secure the premises, abate and prevent the nuisance
and remediate its impacts and effects. Upon recovery, all such penalties
and costs shall be paid into the general fund of the City of Newburgh.
A.
A judgment awarding a permanent injunction pursuant to this chapter
may direct the closing of the building, structure, erection or place
by the City Marshall to the extent necessary to abate the nuisance
and shall direct the City Marshall to post a copy of the judgment
and a printed notice of such closing on the building, structure, improvement,
location or place. Mutilation or removal of such a posted judgment
or notice while it remains in force, in addition to any other punishment
prescribed by law, shall be punishable, on conviction, by a fine of
not more than $250 or by imprisonment not exceeding 15 days, or by
both, provided that such judgment contains therein a notice of such
penalty. The closing directed by the judgment shall be for such period
as the court may direct. A closing by the City Marshall pursuant to
the provisions of this section shall not constitute an act of possession,
ownership or control of the closed premises by the Marshall or the
City.
B.
Intentional disobedience or resistance to any provision of a judgment
awarding a permanent injunction pursuant to this chapter, in addition
to any other punishment prescribed by law, shall be punishable by
a fine of not more than $500 or by imprisonment not exceeding six
months, or both.
C.
A judgment rendered awarding a permanent injunction pursuant to this
chapter shall be and become a lien upon the building, structure, erection
or place named in the complaint in such action, such lien to date
from the time of filing a notice of lis pendens in the office of the
County Clerk. Every such lien shall have priority before any mortgage
or other lien that exists prior to such filing except tax liens.
D.
A judgment awarding a permanent injunction pursuant to this chapter
shall provide, in addition to the costs and disbursements allowed
by the Civil Practice Law and Rules, upon satisfactory proof of affidavit
or such other evidence as may be submitted, the actual costs, expenses
and disbursements of the City in investigating, bringing and maintaining
the action, including legal and attorneys' fees; and the City's
actual costs of securing the premises, abating and preventing the
nuisance and remediating its impacts as provided herein.
A.
The Corporation Counsel shall have the power, on ex parte application to any court of competent jurisdiction, to appoint a receiver of rents and profits of the premises for the purposes of collecting the civil penalty established pursuant to § 126-8C of this chapter and abating the public nuisance. The receiver shall have the powers, duties, and rights of a receiver of rents and profits of real estate, as provided by law; provided, however, that the Corporation Counsel shall act as counsel to the receiver, and the receiver shall not be allowed any expenditure for counsel fees, and the receiver's commission shall be no greater than 10% of the receiver's collections from the premises, which sum shall be full compensation for the receiver's services and those of any agent or agents whom the receiver may retain. The receivership shall continue until the amount of the City's liens, costs, expenses, fines and penalties, as set forth herein with interest at the rate of 9% per annum, and the receiver's commissions have been fully paid and the nuisance abated; provided, further, that nothing in this section shall be construed to prevent any prior lienor from applying to a court in a proper case for a receiver of the premises.
B.
At any time after the entry of any judgment establishing a lien upon
the premises, the Corporation Counsel, on behalf of the City of Newburgh,
may apply to a court for leave to sell the premises. Upon such application,
the court may order the premises sold at public auction or private
sale, subject to taxes, assessments, water rates, mortgages and mechanics
liens.
Any action taken or proceeding undertaken by the City pursuant
to this chapter shall not constitute an act of possession, ownership
or control by the City of Newburgh of the subject premises.
A.
It shall be a misdemeanor for any person to use or occupy, or to
permit any other person to use or occupy, the premises, or any portion
thereof, ordered dosed by the authorized City officials or by a court
of law pursuant to this chapter.
B.
Intentional disobedience of or resistance to any provision of the
order issued by the authorized City officials, in addition to any
other punishment prescribed by law, shall be punishable by a fine
of not more than $500, or imprisonment not exceeding 15 days, or both.
C.
Each day's violation of this section shall constitute a separate
offense.
In addition to all powers of authorized City officials and officers
to enforce the provisions of this chapter conferred herein, such officials
and officers shall have the same powers to enforce the provisions
of this chapter as those conferred upon them to enforce any and all
other provisions of the laws, codes, rules and regulations of the
State of New York and/or of the City of Newburgh and/or either of
them pertaining to property maintenance and sanitation and housing
and building safety.
Neither the City of Newburgh, nor any officer, agent or employee
thereof, shall be corporately or personally liable for any damage
resulting from any official determination, order or action required
or permitted by or under this chapter.
For the purpose of this chapter, references to the Penal Law,
Alcoholic Beverage and Control Law, Vehicle and Traffic Law, Tax Law
and other laws and codes shall mean the laws of the State of New York
and the laws, codes, rules and regulations of the State of New York,
the City of Newburgh, and any departments and agencies thereof duly
authorized by law to promulgate same.
If any provision of this chapter or the application thereof
to any person or circumstance is held invalid, the remainder of this
chapter and the application of such provision to other persons or
circumstances shall not be rendered invalid thereby.
