[HISTORY: Adopted by the Board of Trustees of the Village
of Phoenix as indicated in article histories. Amendments noted where
applicable.]
GENERAL REFERENCES
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[1]]
[1]
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."
A.
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.
B.
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:
Include the following:
The owner of the real property upon or within which any conditions
required to be addressed pursuant to this article are located.
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.
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.
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.
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.
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."
Includes the following:
Lumber, junk, trash, debris, building materials, mounds or dirt
or any other deleterious materials.
Any abandoned, discarded or unused objects or equipment, such
as automobile parts, furniture, stoves, refrigerators, freezers, cans,
containers or vehicle tires.
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.
Any unsanitary matter or materials.
Refuse, rubbish and garbage, as said terms are defined in any
solid waste provision of this Code.
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.
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.
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.
A.
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.
B.
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]
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
I.
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.
J.
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.
K.
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.
L.
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.
A.
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.
B.
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.
C.
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.
D.
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.
A.
Service of notice.
[Amended 5-17-2022 by L.L. No. 1-2022]
(1)
If any of the provisions of this chapter are not complied with, the
Code Enforcement Officer shall serve written notice and an order to
remedy such violation personally upon the owner of the property; or
send it by certified mail, return receipt requested, and by regular
mail addressed to the last known address of the owner; and/or post
in a conspicuous place on the property.
(2)
Service of notice upon any owner of land, or the designated person
to receive process as provided by law, shall suffice for the purposes
of this section.
B.
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.
C.
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.
D.
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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.
A.
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.
B.
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.
A.
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.
B.
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.