[HISTORY: Adopted by the Board of Trustees of the Village of Fort Plain 11-19-2012 by L.L. No. 3-2012. Amendments noted where applicable.]
The Board of Trustees finds that the quality of life for many residents of the Village of Fort Plain is threatened by the deterioration of some properties as well as by certain activities and patterns of behavior engaged in by individuals living in close proximity to such residents' homes. The Board further finds that such activities, behavior and deteriorating properties constitute a public nuisance and finds that, while it is in the public interest for Village officials to proactively work with property owners to resolve certain problems before such problems reach the level whereby they constitute a public nuisance, it is necessary and desirable to create and empower the Village to take certain actions either in conjunction with or apart from actions taken by other agencies or departments of the Village of Fort Plain utilizing the powers contained in other laws, without prejudice to the use of procedures and remedies available to such other officials under such other laws, in order to reduce the incidence of public nuisances, enhance and protect the public health, safety and welfare and improve the overall quality of life within the Village of Fort Plain.
Definitions. The following definitions shall apply in interpretation and enforcement of this chapter:
- Any structure having a roof for the shelter, housing or enclosure of persons, animals, chattels or property of any kind.
- A building designed or used as the living quarters for one or more families. The term "dwelling" shall be deemed to include an automobile court, rooming house or tourist home.
- ENFORCEMENT OFFICER
- That person designated by a majority of the Village Board to carry out the duties of enforcement and administration of the Code of the Village of Fort Plain.
- A plotted lot or part thereof or unplotted lot or parcel or plot of land, either occupied or unoccupied by any dwelling or nondwelling structure, including the dwelling or structure thereon.
- The combination of any materials, whether fixed or portable, forming a construction, including buildings.
For purposes of this section, a public nuisance shall be deemed to exist whenever, through violation of any of the following provisions resulting from separate incidents at a building, dwelling, premises, structure or place, 12 or more points are accumulated within a period of six months, or 18 or more points within a period of 12 months, in accordance with the following point system. Where more than one violation occurs during a single incident, the total points for the incident shall be the highest point value assigned to any single violation.
The following violations shall be assigned a point value of six points:
Violations of following chapters of the Code of the Village of Fort Plain shall be assigned a point value of four points:
For purposes of this section, a conviction for an offense in a court of competent jurisdiction or an administrative bureau shall not be required. Instead, the Village shall prove by a preponderance of the evidence that the violations have occurred. Evidence of a violation may include, but is not limited to, police reports, investigative reports, execution of search warrants, results of police surveillance, arrest and/or conviction of local and state and federal laws, activities associated with trafficking of controlled substances, finding of weapons and/or controlled substances on or near the property, increased volume of traffic associated with the property, excessive police attention as a result of citizen complaints, as well as notices, citations and orders issued by the Code Enforcement Officer. However, a conviction, as defined and applied in accordance with the provisions of § 1.20, Subdivision 13, of the Criminal Procedure Law, in any court of competent jurisdiction shall constitute conclusive proof of a violation. Convictions 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.
Upon the accumulation of any points pursuant to this chapter, the Enforcement Officer shall give notice to the owner, lessee or mortgagee of a building, dwelling, or structure or place wherein the public nuisance is being conducted, maintained or permitted. Such notice shall be served upon an owner or mortgagee pursuant to Article 3 of the Civil Practice Law and Rules and upon a lessee, mortgagee, or some other person by certified mail, return receipt requested, to the last known address, provided that any service other than delivery to the person to be served shall be complete immediately upon delivery, mailing or posting without the necessity of filing proof of service with the Clerk of the Court before the hearing. The person in whose name the real estate affected by the orders of the Court is recorded in the office of the County Clerk shall be presumed to be the owner thereof.
The notice, as set forth in Subsection A of this section, shall:
Provide the specifics of the activity or activities creating the public nuisance.
Advise that there are 30 days for the elimination of the public nuisance.
Inform the person to whom it is directed of his/her right to apply within 10 days of service of the notice for a hearing before the Enforcement Officer.
Inform the owner or any other person directly in control of the building, dwelling, premises, structure or place that, upon the expiration of 30 days after service, without a hearing before the Enforcement Officer or upon noncompliance with any agreement reached at a hearing or a finding that a public nuisance exists, the Enforcement Officer shall ask to obtain compliance by commencing a proceeding with the Town Court, Town of Minden.
Inform the owner or any other person directly in control of the building, dwelling, premises, structure or place of the obligation to post a copy of the notice within five days in a conspicuous place, so that all occupants or others entering the premises shall be on notice that a public nuisance has been determined as being conducted, maintained, or permitted on the premises and that, upon 30 days after service of notice, the Enforcement Officer shall act to obtain compliance as provided in this chapter, including, but not limited to, closing the premises.
Upon accumulation of points sufficient to constitute a public nuisance, and after not being able to resolve the same at the notice of hearing stage, the Enforcement Officer shall issue an appearance ticket, together with an information specifying the basis for the alleged public nuisance, to the owner, lessee or mortgagee of any building, dwelling, premises, structure or place where a public nuisance is alleged to exist, served on such person in accordance with this chapter and returnable in the Town Court of the Town of Minden.
The appearance ticket, together with the information, shall be served as follows: upon an owner pursuant to Article 3 of the Civil Practice Law and Rules; upon a lessor or lessee pursuant to § 735 of the Real Property Actions and Proceedings Law; and upon a mortgagee by means of certified mail, return receipt requested, sent to the mortgagee's last known address, provided that any service other than delivery to the person to be served shall be complete immediately upon delivery, mailing or posting. The person in whose name the real estate affected by the orders of the Court is recorded in the office of the County Clerk shall be presumed to be the owner thereof. Proceedings shall be commenced in the manner in this chapter within 60 days after the occurrence of the most recent violation cited in the information.
The lack of knowledge of, acquiescence or participation in, or responsibility for a nuisance on the part of the owner, mortgagee, or any other person directly or indirectly in control of or having any interest in the building, dwelling, premises, structure or place used in conducting or maintaining the public nuisance shall not be a defense by such owner, mortgagee or other person.
After notice and opportunity for a hearing upon such notice, upon a determination that a public nuisance does exist upon proceedings in the Town Court of the Town of Minden with respect to the appearance ticket and information, the Court shall be authorized to order any of the following:
The vacating of the building, dwelling, premises or place, or a portion thereof, where the nuisance is found to have occurred, to the extent necessary to abate such nuisance.
The closing of the building, dwelling, premises, structure or place, or a portion thereof, where the nuisance is found to have occurred, for up to a period of six months.
The suspension for a period not to exceed six months or revocation for a period of six months of any occupational license or permit issued by the Village related to the conduct of a business or trade at the premises, which suspension or revocation shall also apply to any other locations operated by the holder for which the license or permit is required.
The imposition of a fine not to exceed $1,000 upon the owner or other person having control of the premises, either directly or indirectly, or the lessor or lessee of the building, dwelling, premises, structure or place where the nuisance is found to have occurred, and such person has been served and the Court has jurisdiction over such person.
Any combination of the above.
Orders of the Town Court, or of any other court of competent jurisdiction, issued pursuant to this section shall be posted at the building, structure or place where a public nuisance exists or is occurring in violation of law and shall be mailed, by certified or regular mail to the owner of record thereof within one business day of the posting.
Five business days after the posting of an order issued pursuant to this section and upon written directive of the enforcement orders, officers of the Fort Plain Police Department are authorized to act upon and enforce such orders.
Where the building, dwelling, premises, structure or place is closed pursuant to this section, such closing shall be for such period as the Court may direct, but in no event shall the closing be for a period of more than six months from the posting of the order pursuant to this section. If the owner, lessor or lessee shall file a bond in an amount determined by the Court, but which may not exceed the value of the property ordered to be closed, and submit proof satisfactory to the Court that the nuisance has been abated and will not be created, maintained or permitted for such period of time as the building, structure or place has been directed to be closed by the order of the Court, then the Court may vacate the provisions of the order that direct the closing of the building, structure or place.
A closing directed by the Court pursuant to this section shall not constitute an act of possession, ownership or control of the closed premises by the Village.
It shall be a misdemeanor for any person to use or occupy, or to permit any other person to use or occupy, any building, structure, or portion thereof ordered closed in accordance with this chapter. Mutilation or removal of a posted order of the Court shall be punishable by a fine of not more than $250 or by imprisonment not exceeding 15 days, or both, provided that such order contains therein a notice of such penalty.
Intentional disobedience or resistance to any provision of the orders issued by the Court pursuant to this section, in addition to any other punishment prescribed by law, shall be punishable by a fine of not more than $1,000 or by imprisonment not to exceed six months, or both.
The Enforcement Officer may promulgate rules and regulations to carry out and give full effect to the provisions of this section.
Each day a violation continues shall constitute a separate offense.
Neither the Village of Fort Plain nor any officer, agent or employee thereof shall be personally liable for any damage or claim deemed to result from any official determination, order or action required or permitted by or under this chapter.