[HISTORY: Adopted by the Town Board of the Town of Kingsbury 2-21-2017 by L.L. No. 2-2017. Amendments noted where applicable.]
GENERAL REFERENCES
Unsafe buildings— See Ch. 100.
A.
The Town Board finds that public nuisances exist in the Town of Kingsbury
in the operation and use of certain property, including residential
premises, in violation of such laws as the Penal Law of the State
of New York, the New York State Uniform Fire Prevention and Building
Code and the Code of the Town of Kingsbury, which nuisances substantially
and seriously interfere with the interest of the public in the quality
of life and total community environment, commerce in the Town, property
values and public health, safety, peace, comfort, conveniences and
general welfare.
B.
Specifically, the deterioration of some properties and the activities
and patterns of behavior engaged in by certain individuals threaten
the quality of life for the residents of the Town. The Town Board
further finds that the continued occurrence of such activities and
violations is detrimental to the health, safety and welfare of the
residents of the Town of Kingsbury and of the businesses thereof and
the visitors thereto. It is the purpose of this chapter to authorize
the Town to create one standardized procedure for securing legal and
equitable remedies and reform relating to the subject matter encompassed
by this chapter and to strengthen existing laws on the subject. In
so doing, this chapter shall authorize the Town to impose sanctions
and penalties for such public nuisances and remediate the same. Such
powers may be exercised either in conjunction with, or apart from,
the powers contained in other laws without prejudice to the use of
procedures and remedies available under such other laws.
C.
The Town Board further finds that the sanctions and penalties and
remedial measures authorized herein constitute a supplementary and
suitable method of law enforcement in response to the rapidly expanding
presence of public nuisances. These sanctions, penalties and remedial
measures are reasonable and necessary in order to protect the health
and safety of the residents of the Town and to promote the general
welfare of the community.
A.
A public nuisance is declared to exist where behavior in the use
of or on the premises unreasonably interferes with the health, safety,
peace, comfort or convenience of the general community, occurring
within a period of six months of such frequency or duration that the
continued occupancy of the premises presumes continuation of such
unreasonable interference regardless of whether or not any person
has been convicted for violation of any provisions of the Penal Law
of the State of New York, the New York State Uniform Fire Prevention
and Building Code or the Code of the Town of Kingsbury.
B.
A public nuisance is declared to exist whenever, through violations
of any of the following, provisions resulting from separate incidents
at a building, 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. For a
multi-dwelling unit with four or more units, a public nuisance is
declared to exist whenever, through violations of any of the following
provisions resulting from separate incidents at a building, structure
or place, 18 or more points are accumulated within a period of six
months or 24 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.
(1)
The following violations shall be assigned a point value of six points:
(a)
Article 120 of the Penal Law - Assault and Related Offenses.
(b)
Article 125 of the Penal Law - Homicide, Abortion and Related
Offenses.
(c)
Article 130 of the Penal Law - Sex Offenses.
(d)
Article 140 of the Penal Law - Burglary and Related Offenses.
(e)
Sections 165.40, 165.45, 165.50, 165.52 and 165.54 of the Penal
Law - Criminal Possession of Stolen Property.
(f)
Sections 170.65 and 170.70 of the Penal Law - Forgery of and
Illegal Possession of a Vehicle Identification Number.
(g)
Article 178 of the Penal Law - Criminal Diversion of Prescription
Medications and Prescriptions.
(h)
Article 220 of the Penal Law - Controlled Substances Offenses.
(i)
Article 221 of the Penal Law - Offenses Involving Marihuana.
(j)
Article 225 of the Penal Law - Gambling Offenses.
(k)
Article 230 of the Penal Law - Prostitution Offenses.
(l)
Section 240.20 of the Penal Law - Disorderly Conduct.
(m)
Section 240.36 of the Penal Law - Loitering in the First Degree.
(n)
Sections 260.20 and 260.21 of the Penal Law - Unlawfully Dealing
with a Child.
(o)
Article 263 of the Penal Law - Sexual Performance by a Child.
(p)
Article 265 of the Penal Law - Firearms and Other Dangerous
Weapons.
(q)
Possession, use, sale and/or offer for 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.
(r)
Section 415-a of the Vehicle and Traffic Law - Vehicle dismantlers.
(s)
Section 65 of the Alcoholic Beverage Control Law.
(t)
Section 155.25 of the Penal Law - Petit larceny.
(u)
Section 240.26 of the Penal Law - Harassment in the second degree.
(v)
Section 260.10 of the Penal Law - Endangering the welfare of
a child.
(w)
Article 145 of the Penal Law - Criminal Mischief and Related
Offenses.
(2)
(3)
For the purpose of this section, where a violation is continuous,
each week a violation continues shall be deemed a separate violation.
A conviction for a violation shall not be required, and such violation
shall be established by a preponderance of the evidence. 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, 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 in accordance with the provisions of § 1.20
of the Criminal Procedure Law 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.
In addition to the enforcement procedures established elsewhere,
the Town Board or the Town Board's designees, after notice and
opportunity for a hearing with respect to a public nuisance, shall
be authorized to do the following:
A.
Any action necessary to abate the nuisance, including but not limited
to cleaning, painting, repairing or demolishing any building, structure
or place. The cost of any such remedy shall constitute a property
tax lien against the property upon which such remedy is applied; or
B.
The imposition of a fine not to exceed $1,000 upon the owner, lessor
or lessee of the building, structure or place where the nuisance is
found to have occurred; or
C.
Upon Town Board authorization, the Town Board may commence a proceeding
in the name of the Town in the Supreme Court of Washington County
or any other court of competent jurisdiction to obtain an order of
the court to suspend for a period not to exceed six months or revoke
for a period of one year any occupational license or permit issued
by the Town related to the conduct of a business or trade at the premises,
which suspension or revocation shall also apply to any other location
operated by the holder for which the license or permit is required;
or
D.
Upon Town Board authorization, the Town Board may commence a proceeding
in the name of the Town in the Supreme Court of Washington County
or any other court of competent jurisdiction to obtain an order of
the court to suspend for a period not to exceed six months or to revoke
for a period of one year a certificate of occupancy issued for such
premises, and to prevent the operator from obtaining a new certificate
of occupancy for another location for the period of suspension or
revocation; or
E.
Upon Town Board authorization, the Town Board may commence a proceeding
in the name of the Town in the Supreme Court of Washington County
or any other court of competent jurisdiction to obtain an order of
the court to order the closing of the building, structure or place
to the extent necessary to abate the nuisance; or
F.
Any combination of the above.
A.
Prior to the issuance of orders or upon commencing any action in
the Supreme Court or other court having jurisdiction by the Town Board
or the Town Board's designee pursuant to this section, the Town
Board or the Town Board's designee shall give notice and opportunity
for a hearing to the owner, lessor, lessee and mortgagee of a building,
structure or place wherein the public nuisance is being conducted,
maintained or permitted. Such notice shall be served 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 without the necessity of filing proof of service with the
clerk of any court before the hearing. The person in whose name the
real estate affected by the orders by the Town Board or the Town Board's
designee is recorded in the office of the County Clerk shall be presumed
the owner thereof. Proceedings shall be commenced by service of the
notice and opportunity for a hearing within 60 days after the occurrence
of the most recent violation cited in the notice.
B.
The lack of knowledge, acquiescence or participation in or responsibility
for a public nuisance on the part of the owners, lessors, lessees,
mortgagees and all those persons in possession or having charge of,
as agent or otherwise, or having any interest in, the property, real
or personal, used in conducting or maintaining the public nuisance,
shall not be a defense by such owners, lessors and lessees, mortgagees
and such other persons.
C.
Orders of the Town Board or the Town Board's designee issued
pursuant to this section and upon the written directive of the Town
Board or the Town Board's designee. Officers of the Washington
County Sheriff's office are authorized to act upon and enforce
such orders.
D.
Five business days after the posting of an order issued pursuant
to this section, and upon the written directive of the Town Board
or the Town Board's designee, officers of the Washington County
Sheriff's office are authorized to act upon and enforce such
orders.
E.
Where the Town Board or the Town Board's designee closes a building,
structure or place pursuant to this chapter, such closing shall be
for such period as the Town Board or the Town Board's designee
may direct, but in no event shall the closing be for a period of more
than one year from the posting of the order pursuant to this chapter.
If the owner, lessor or lessee shall file a bond in an amount determined
by the Town Board or the Town Board's designee, but which may
not exceed the value of the property ordered to be closed, and submit
proof satisfactory to the Town Board or the Town Board's designee
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 Town Board
or the Town Board's designee, then the Town Board or the Town
Board's designee may vacate the provisions of the order that
directs the closing of the building; structure or place.
F.
A closing directed by the Town Board or the Town Board's designee
pursuant to this chapter shall not constitute an act of possession,
ownership or control by the Town of the closed premises.
A.
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 place,
or a portion thereof, ordered closed by the Town Board or the Town
Board's designee. Mutilation or removal of a posted order of
the Town Board or the Town Board's designee shall be punishable
by a fine not exceeding $250 or imprisonment for a period not exceeding
15 days, or both, for conviction of a first offense; for conviction
of a second offense, both of which were committed within a period
of three years, punishable by a fine of not less than $250 nor more
than $500 or imprisonment for a period not to exceed 30 days, or both;
and upon conviction for a third offense or subsequent offense, all
of which were committed within a period of five years, punishable
by a fine of not less than $500 nor more than $750 or imprisonment
for a period not to exceed 60 days, or both, provided that such orders
contain therein a notice of such penalty.
B.
Intentional disobedience or resistance to any provision of the orders
issued by the Town Board or the Town Board's designee pursuant
to this chapter, 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 Town Board or the Town Board's designee may promulgate
rules and regulations to carry out and give full effect to the provisions
of this chapter.
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 provisions to other persons and
circumstances shall not be rendered invalid thereby.
This chapter shall take effect immediately upon filing with
the Secretary of State.
