[HISTORY: Adopted by the Town Board of the
Town of Marlborough 6-10-2002 by L.L. No. 2-2002; amended in its entirety
7-28-2003 by L.L. No. 4-2003. (This chapter was adopted as Ch. 69,
but was renumbered to fit into the alphabetical organization of the
Code.) Subsequent amendments noted where applicable.]
The Town Board of the Town of Marlborough hereby
determines it is necessary for the public health, safety and general
welfare of the residents of the Town of Marlborough to provide regulations
in accordance with Public Health Law § 302 whereby properties,
waterways, ponds, and other standing water within the incorporated
portion of the Town are kept clean and relatively free from vermin,
noxious weeds, and disease-bearing insects, including but not limited
to ticks, mosquitoes and flies; are properly maintained; and are kept
free of nuisances, hazards, debris and litter. Further, it is found
and declared that by reason of lack of maintenance and progressive
deterioration, certain properties and structures have the further
effect of creating blighting conditions leading towards the creation
of slum-type areas and that, if the same are not curtailed and removed,
the conditions will grow and impact the entire community. By reason
of timely regulations and restrictions, the public health may be protected,
blighted areas prevented and the desirability and amenity value of
properties maintained.
A.
For purposes of this chapter, certain words and phrases
shall be construed herein as set forth in this section unless it is
apparent from the context that a different meaning is intended. When
not inconsistent with the context, the present tense shall include
the future, and words used in the plural shall include the singular
and vice versa.
B.
DEBRIS
GARBAGE
HAZARDS
LITTER
NOXIOUS WEEDS
NUISANCE
(1)
(2)
(3)
OCCUPANT
OWNER
PERSON
PREMISES
SOLID WASTE
As used in this chapter, the following terms shall
have the meanings indicated:
The remains of something broken down or destroyed or ruins,
rubble, or fragments.
Any animal or vegetable refuse or waste matter capable of
fermentation or decay.
A source of danger, peril, conditions creating a risk or
a chance of an accident, unhealthy condition, or unsightly conditions.
Trash polluting the environment. A disorderly accumulation
of objects and/or carelessly discarded waste materials or scraps.
Plants or other flora growth that may be hurtful, harmful
or may physically affect individuals or animals, including but not
limited to such as poison ivy, sumac (trees, bushes or vines), deadly
nightshade, Japanese Heliotrope and bindweed. “Noxious weeds”
shall not include those plants normally cultivated in gardens.
Any public or private condition that would constitute
a nuisance according to the statutes, laws and regulations of the
State of New York, its governmental agencies or the regulations and
laws of the Town.
Any physical condition existing in or on any
premises which is potentially dangerous, detrimental or hazardous
to the life, health or safety of persons on, near or passing within
the proximity of premises where said condition exists.
Any waste material or any other matter attractive
to vermin, likely to breed disease or which present a fire hazard,
create offensive odors or otherwise are prejudicial to good health
or are so unsightly of appearance as to be offensive to surrounding
properties.
Any person residing, using, living or sleeping in or on the
premises or having actual possession, use or occupancy of any structure
on the premises or any person or entity in possession of or using
any premises or part thereof, whether or not the owner thereof and
regardless of the duration of time of such possession, use or occupancy
and regardless of whether the property is vacant or not.
Any person, persons or entity who shall have legal or equitable
title in any form whatsoever to any premises or part thereof, with
or without accompanying actual possession thereof, or who shall have
charge, care or control of any lot, premises, building, structure
or part thereof as agent of the owner or as a fiduciary, trustee,
receiver, guardian, lessee or mortgagee in possession, regardless
of how such possession was obtained. Any person, group of persons
or entity who is a lessee, sublessee or assignee of a lessee of any
part or all of any building, structure or land shall be deemed to
be a co-owner with the lessor for the purposes of this chapter and
shall have responsibility over the premises sublet, leased or assigned.
Any individual, partnership, association, firm, corporation
or any entity which can own or lease real property under New York
State law.
A lot, plot or parcel of land, including the buildings or
structures thereon.
Materials or substances discharged, discarded or rejected
as being spent, useless, worthless or in excess by the owner at the
time of such discard or rejection, except sewage and other highly
diluted water-carried materials or substances and those in gaseous
form. Such waste shall include but is not limited to garbage, sludge,
rubbish, ashes, incinerator residue, street cleanings, dead animals,
refuse, abandoned vehicles, agricultural waste, industrial waste,
commercial waste and construction and demolition debris.
A.
In furtherance of the purposes of this chapter, it
shall be the duty and responsibility of the owner or occupant of premises
to comply with any or all of the requirements and standards of this
chapter to keep the premises free of conditions which constitute violations
hereof and to promptly remove, prevent or abate such conditions as
well as any county, state and federal laws, codes or regulations.
B.
Owners and occupants shall have all the duties, obligations
and responsibilities prescribed in this chapter, and no such person
or entity shall be relieved of any duty, obligation or responsibility
hereunder nor be entitled to assert, as a defense against any charge
made against him or them for violation of this chapter, the fact that
another owner, operator or occupant or any other third person or entity
is also responsible therefor and in violation thereof.
The provisions of this chapter shall supplement
state and local laws, codes or regulations. Where a provision of this
chapter is found to be in conflict with a provision of a state or
local law, code or regulation, the more restrictive provision shall
prevail when legally permissible.
A.
Surface and subsurface water shall be appropriately
drained to prevent the development of stagnant ponds.
B.
Premises shall be maintained in a clean, safe and
sanitary condition free of physical hazards, fire hazards, solid waste,
infestation, roaches, junk vehicles, hazardous substances, construction
and demolition material, noxious weeds or nuisances.
C.
All fences must be kept maintained free from broken
or missing sections, as well as being secured into the ground, All
repairs should be made upon disrepair.
D.
Premises shall be maintained in such a manner that
noxious weeds do not encroach upon adjoining properties, and the grasses
thereon shall be mowed or cut when the height of growth exceeds 12
inches. Exempt from this provision are those parcels located in RAG-l
and those premises for active farming, wood lots, grazing, pasture
or the growing of hay for feed.
[Amended 5-23-2022 by L.L. No. 4-2022]
E.
The landscaping on all premises improved with a building
thereon shall be properly maintained. Such maintenance shall include
but not be limited to the trimming or removal of trees and potentially
hazardous or diseased trees, shrubs or portions thereof. Lawns shall
be kept mowed to a height not to exceed 12 inches.
F.
Steps, walks, driveways, parking spaces, parking lots
and similar paved areas shall be repaired, replaced and maintained
so as to be free from any holes, cracks, or any other hazard, so as
to afford safe passage to the public under normal use and weather
conditions.
G.
Ground cover shall be properly established to prevent
undue soil erosion due to the elements.
H.
Premises shall be maintained so that the plant growth
thereon shall not:
I.
That portion of the public right-of-way between the private property line and the traveled roadway portion of any right-of-way adjoining the private property owner shall be maintained by the abutting private property owner or occupant in the same manner as provided in § 114-5.
J.
Buildings and structures.
(1)
All exterior exposed surfaces not inherently resistant
to deterioration shall be repaired, coated, treated or sealed with
a protective coating of paint or other suitable preservative to protect
them from deterioration.
(2)
All signs exposed to public view shall be maintained
in good repair. Excessively weathered or faded signs shall be repaired,
restored or removed. Inoperative electrical or other mechanical signs
shall be repaired or removed.
(3)
Except in one- and two-family dwellings, all floors,
walls, ceilings, stairs and fixtures of a building’s exterior
walls, roofs, porches or appurtenances thereto shall be maintained
in a clean, safe and sanitary condition and shall be maintained in
a manner so as to prevent injury to the occupants of the building
or to the public.
(4)
The foundation walls of every building shall be maintained
in a structurally sound condition.
(5)
The exterior parts of a building shall be maintained
so as to keep water from entering the building. Material which have
been damaged or show evidence of dry rot or other deterioration shall
be repaired or replaced and refinished in a workmanlike manner. Exterior
walls, gutters, leaders, soffits, cupolas, roofs and other parts of
the building shall be free from loose and unsecured objects and materials.
Such objects or materials shall be removed, repaired or replaced.
(6)
Buildings and structures shall be maintained free
of fleas, roaches, insects, vermin, and rodent harborage and infestation,
and any other animals causing unsanitary or unhealthy conditions.
(7)
Adequate sanitary facilities and methods shall be
used for the collection, storage, handling and disposal of garbage
and refuse. Garbage and refuse containers shall be of an approved
waterproof type.
A.
Enforcement officer; appearance tickets. The Code
Enforcement Officer of the Town of Marlborough and the Police Chief
are hereby designated as the officers charged with the enforcement
of this chapter, and either is hereby authorized to issue appearance
tickets to secure enforcement. Such appearance tickets shall be in
the form prescribed by the Town Board, and returnable before the Town
Court.
B.
Enforcement procedure.
(1)
Whenever an enforcement officer determines that there
is or has been any violation of any provision of this chapter, he
shall give notice of such violation to the person, persons, or entities
responsible therefor. Such notice shall be in writing and shall include
a concise statement of the reasons for its issuance. Such notice shall
be deemed to be properly and sufficiently served if a copy thereof
is sent by registered or certified mail to the last known address
of the person or entity upon which the same is served, as shown by
the most recent assessment roll of the Town, or a copy thereof is
personally delivered (as if a summons) to said person or persons or
a copy thereof is left at the usual place of abode or office of said
person or entity.
(2)
Notice shall be given as aforesaid within or without
the Town.
(3)
The notice shall also state that unless the violation
is abated, removed, cured, prevented or desisted from within five
days of the date of service of such notice, exclusive of the date
of service, an appearance ticket shall be issued for such violation.
The enforcement officer may extend the period for compliance with
the violation stated in the notice for a period in excess of the aforesaid
five days if, in his judgement, the abatement, removal, prevention,
cessation or cure of the condition violated can not reasonably be
effected within the five-day period, and in such cases, the enforcement
officer shall state such reasonably required extended period in the
notice, which shall then be applicable instead of the aforesaid five
days.
(4)
Whenever a violation has not been remedied within
the time specified in the notice of violation, an enforcement officer
can issue a summons, bringing the person into the Justice Court.
C.
Emergency conditions. Whenever the enforcement officer
finds that an emergency condition in violation of this chapter exists,
which condition requires immediate attention in order to protect the
public health or safety, he may issue an order by service of notice
in the manner set forth above, reciting the existence of such an emergency
condition and requiring that such action be taken by the violator
as soon as it is reasonably necessary to meet the emergency. Notwithstanding
any other provision of this chapter, such order shall be effective
immediately. Any person to whom such an order is directed shall comply
therewith immediately, but upon objection in writing to the Enforcement
Officer, and returnable before the Town Court, any such person shall
be afforded a hearing before the Town Justice.
D.
Failure to comply with the direction of any official
of the Town of Marlborough when notice has been provided in accordance
with this chapter shall constitute a separate and distinct offense
hereunder.
E.
Action by Town; indemnification.
(1)
Nothing contained in this chapter shall be construed
or interpreted as limiting the authority of the Town to take all steps
reasonable or necessary to promote and protect the public health,
safety and welfare by providing for safe passage of pedestrians and
vehicles on streets, sidewalks and public ways. The Town Board, in
its discretion, may authorize local authorities to remove obstructions
or nuisances, standing water, including snow, ice and vegetative growth,
which impair the customary use of street, sidewalks and public ways.
The Town Board may determine to undertake or authorize action, in
whole or in part, by reasonable classification based upon location,
amount of public use and degree of danger or impairment presented.
The undertaking of the Town to take these actions upon default of
the property owner shall not relieve the owner of any responsibilities
imposed by this chapter.
(2)
The failure or omission by the Town to undertake to provide services shall not create any liability attributable to the Town. With respect to any dangerous conditions for which the Town may be liable, it shall be entitled to receive notice of defect in accordance with Chapter 114 of the Code of the Town. Any duty on the part of the Town pursuant to this chapter is a general duty of the Town. No person is authorized to create or imply or to assume or infer a special duty by the Town.
A.
Upon the failure of a person to comply with a notice
to correct a condition complained of the Town Board may, after a public
hearing, abate the condition, including authorizing the Code Enforcement
Officer or such other person, department or independent contractor
as it shall deem appropriate to remove, cut or trim brush, grass,
rubbish or weeds causing the hazard or to spray the same, charging
the total cost thereof to the owner of such real property, which cost
shall be assessed and constitute a lien and charge on the real property
on which it is levied until paid or otherwise satisfied or discharged,
and the same shall be collected in the same manner and at the same
time as other Town charges. In the emergency circumstances, the public
hearing may take place after removal or abatement action by the Town.
B.
The removal of any nuisance, hazard or litter by the
Town Board or its agents shall not operate to excuse the owner, tenant
or occupant from properly maintaining any premises as required by
this chapter, and such owner, tenant or occupant shall, notwithstanding
such action, be subject to any penalties provided for herein.
C.
All direct and indirect costs of labor and equipment,
supplies, disbursements and payments made or incurred by the Town
in enforcement of this chapter, performing the work to abate the conditions
which violate this chapter and in otherwise securing compliance shall
be payable to this Town by the owner of the property. Any sums unpaid
shall be a lien on the real property and shall be assessed against
such property, with 9% interest per annum, and shall be relevied and
collected in the same manner as real property taxes.
A.
Criminal penalty. Any person or entity who shall violate
any of the provisions of this chapter or any order promulgated hereunder
shall, upon conviction, be fined up to $250 plus up to 15 days in
Ulster County Jail for each offense.
B.
Civil penalties. Alternatively or in addition to those
criminal penalties prescribed for violations under this chapter and/or
state law, any person, firm or corporation who violates this chapter
shall be liable to the Town for a civil penalty of not more than $200
for each day or part thereof during which such violation continues.
Said civil penalties shall be recoverable in an administrative proceeding
held by and before the Town Board pursuant to the following procedure.
(1)
An enforcement officer can issue a petition to bring
the property owner and/or occupant before the Town Board.
(a)
Such petition shall be served personally or
by mailing a copy of such petition by certified mail to the property
owner and/or occupant, to their last known addresses as shown by the
records of the Town, and by posting a copy of such petition on said
premises.
(b)
A copy of said petition may be filed in the
Town Building Inspector's office and entered in the same manner as
any other code violations. A petition so filed shall be effective
as an open violation and shall remain until cleared. It may be cancelled
upon the written consent of the Attorney for the Town, or by resolution
of the Town Board by a majority vote. The Building Inspector shall
mark the violation as cancelled upon written direction from the Attorney
for the Town or a Town Board resolution.
(2)
Content of petition. Said petition shall state the
nature of the violation; the provision violated or a description of
the violation; and the date, time and place for a hearing before the
Town Board. The hearing shall be set for a date not less than seven
days after the date the petition is personally served or mailed.
(3)
Conduct of hearing.
(a)
The Town Board shall conduct a hearing at the
date, time and place specified in the petition. The hearing may be
adjourned from time to time upon the written consent of both the enforcement
officer and the property owner and/or occupant or by the Town Board
at the request of either party. No formal rules of evidence shall
apply, nor shall a stenographic transcript be required.
(b)
The property owner, occupant and any others
subject to the petition may be represented by an attorney and shall
have the right to present evidence and examine witnesses to show why
penalties should not be assessed or modified.
(c)
The hearing should be in a similar fashion as
to a small claims proceeding, i.e., an informal procedure. The enforcement
officer shall set forth his proof, the property owner and/or occupant
shall have the right to cross-examine, and then the property owner
and/or occupant shall have the right to submit their proof and the
enforcement officer shall have the right to cross examine. All witnesses
shall be sworn in by the Town Board. Either party may make an opening
statement or a closing statement but none shall be required. All documents
or proof submitted shall be retained by the Town Board unless otherwise
stipulated to between the parties. After the hearing is closed, the
Town Board shall make a finding and determination indicating the basis
and reason for the decision in setting forth the dollar amount of
any penalties imposed.
(d)
Any fines imposed, plus any costs awarded, including
but not limited to attorneys fees and administrative costs, shall
be immediately due and payable. Administrative costs shall be determined
from time to time by resolution of the Town Board.
(e)
The determination of the Town Board may be reviewed
in a proceeding pursuant to Article 78 of the Civil Practice Law and
Rules, provided that such proceeding is commenced within 30 days of
such determination.
(4)
Assessment of fines and costs. All costs and administration
fees awarded in the administrative proceeding, if unpaid, shall be
a lien on the real property and shall be assessed against such property
and shall be charged interest of 9% per annum from the date of the
petition and shall be levied and collected in the same manner as real
property taxes.
C.
Injunction. In addition to the above-provided penalties
and punishment, the Town Board of the Town of Marlborough may also
maintain an action or proceeding in the name of the Town in a court
of competent jurisdiction to compel compliance with or to restrain,
by injunction, the violation of this chapter or any order promulgated
hereunder.
If any phrase, sentence or provision of this
chapter is judged invalid by any court of competent jurisdiction,
such judgement shall be confined to that phrase, sentence or provision
rejected by such judgement and shall not affect the validity of the
remainder of this chapter.