(a)

Notice of public hearing. The town clerk, by direction of the town board, shall give notice to the owner of record of a public hearing to determine whether or not an excavation upon the lands of such owner constitutes a hazard to public safety. The notice shall be in writing, and shall be served personally upon the owner of record of the lands, or by registered mail directed to the owner at the address shown on the last preceding assessment roll, not less than ten (10) nor more than twenty (20) days before the date set for such hearing.

(b)

Time limit for compliance; failure to comply. If it is determined by the town board after such public hearing that the excavation constitutes a hazard to public safety, written notice shall be given either personally or by registered mail addressed to the owner of record of the land at the address shown on the last preceding assessment roll, that unless the excavated land is filled in or otherwise protected in accordance with the directions of the town board contained in the notice within thirty (30) days, the town superintendent of highways or other designated official of the town will fill in the excavated land or erect barricades or other protective devices as to properly protect against the hazards found to exist by the town board, and that the cost thereof shall be assessed against such lands and property in accordance with the the provisions of section 157 of the Highway Law.

(Code 1966, §§ 18-8, 18-9)

Cross reference— Excavations and soil removal, Ch. 7; street excavations, § 20-51 et seq.

State Law reference— Authority of town to regulate excavated lands, Town Law, § 130(15-a); fixing, collection and lien for fees authorized, Municipal Home Rule Law, § 10(1.(ii)a. (9-a)); Statutes of Local Governments, § 10(5).

The town board of the Town of Vestal finds that public nuisances exist in the Town of Vestal in the operation of certain establishments and the use of property in flagrant violation of certain Penal Law and Municipal Code provisions, which nuisances substantially and seriously interfere with public health, safety, welfare, quality of life and total community environment, commerce in the town and property values. The board further finds that the continued occurrence of such activities and violations are detrimental to the health, safety and welfare of the people of the town of Vestal and of the businesses thereof and the visitors thereto. It is the purpose of this chapter to authorize and empower the Town Board to impose sanctions and penalties for such public nuisances, which power may be exercised either in conjunction with or apart from, and without prejudice to, any and all additional powers and remedies conferred upon the Town Board by local, state and federal lawsand regulations. The Town Board further finds that the sanctions and penalties imposed by the Town Board 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 are reasonable and necessary in order to protect the health and safety of the people of the Town and to promote the general welfare.

(LL 6 of 2023, 6-14-2023)

This article shall be known as the "Property and Building Nuisance Reform Law."

(LL 6 of 2023, 6-14-2023)

As used in this chapter, the following terms shall have the meanings indicated:

Building means a structure where space is covered or enclosed for the use, shelter, storage or protection of persons, animals, chattel or property of any kind, and which is permanently affixed to the land.

Building, accessory means a building subordinate to the principal building on the lot and used for purposes which are clearly related but incidental to that of said principal building.

Business means an activity, occupation, employment or enterprise which requires time, attention, labor and material and wherein merchandise is exhibited or sold, or services offered.

Business office means a building or portion thereof utilized to accommodate the activities of a business.

Conviction

(a)

A conviction for an offense in a court of competent jurisdiction or in or by an administrative agency or bureau shall not be required to prove a violation under this chapter. Instead, the town's burden of proof shall be by a preponderance of the evidence 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, or a plea of guilty, 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.

(b)

Notwithstanding the provisions of subsection (a) above, under no circumstances shall a conviction or a plea of guilty constitute a violation under this chapter where said conviction or plea stemmed from a crime committed at the building, apartment, structure or place in issue, and the crime was first reported by an owner or tenant of the property, place, building or, in the case of a multiunit building, the specific building unit where the crime occurred. Nor shall a conviction or a plea of guilty constitute a violation under this chapter where said conviction or plea stemmed from a domesticviolence-related incident that occurred at the building unit, building, apartment, structure or place in issue.

Disturbance means actions, behavior, or conduct by a person or persons at a particular location that disturbs the peace.

Knowledge of public nuisance means the presumption of knowledge provided by subdivision 1 of § 235.10 of the Penal Law shall be applicable to this chapter. Notice, by mail or personal service, of activities detailing a public nuisance to the property owner of record shall be evidence of knowledge of the public nuisance.

Lot means a parcel of land with or without buildings or structures delineated by lot line and having access to a street as defined in this chapter.

Penal law means New York State Penal Law.

Public nuisance means;

(a)

For the purposes of article II of this chapter, a public nuisance shall be deemed to exist whenever, through violations of any of the laws or regulations, or commission of any of the business-activity-related offenses listed in subsection (c) below, the building, apartment, structure or place in issue, or immediately adjacent to the building, apartment, structure or place in issue, accumulates twelve (12) or more points within a period of six (6) months or eighteen (18) or more points within a period of twelve (12) months in accordance with the point system described in the said subsection (c). Where more than one (1) violation occurs during a single incident, the total points for the incident shall be the highest point value assigned to any single violation. All references to statutes and codes in subsection (c) below shall mean the statute or code provision in effect at the time this chapter is adopted and as may be amended from time to time.

(b)

Notwithstanding any contrary provisions of this chapter, under no circumstance shall points accumulate toward a public nuisance determination where violations are discovered during the course of an investigation by law enforcement or code enforcement personnel in response to a request for assistance by an owner, manager or tenant of the property, place, structure, building or, in the case of a multiunit building, the apartment where the violation occurred. Nor shall points accumulate toward a public nuisance determination where violations are discovered during the course of such an investigation in connection with a report of a domesticviolence-related incident at the apartment, building, property or place in issue, and the victim of said domestic violence is the owner, manager, or a tenant of the apartment, building, property, structure or place. Notwithstanding the above, an owner, manager or tenant who participates in or persistently condones or allows such public nuisance to occur shall not be entitled to the protection of this subsection (b).

(c)

Violations are assigned point values as follows:

(1)

Violations of the following laws and regulations and commission of the following offenses shall be assigned a point value of two (2) points:

A.

Sections 240.36 and 240.3751] of the Penal Law, loitering in the first degree and loitering for the purpose of engaging in a prostitution offense.

B.

Suffering or permitting the premises to become disorderly, including suffering or permitting fighting or lewdness.

C.

Division 2 article VII of chapter 24 of the Code of the Town of Vestal, noise limits: three (3) or more violations within a two-week period.

D.

Chapter 19 of the Code of the Town of Vestal, litter control: three (3) or more violations within a two-week period.

E.

The agriculture and markets law, dangerous dogs, where a dog is determined by a court to be a dangerous dog but no human was attacked or injured.

(2)

Violations of the following laws and regulations and commission of the following offenses shall be assigned a point value of four (4) points:

A.

Disorderly conduct by an individual or individuals: three (3) or more violations within a two-week period.

B.

Chapter 5 of the Code of the Town of Vestal, property maintenance, or the New York State Uniform Fire Prevention and Building Code:531 three (3) or more violations within a two-month period.

1.

Each repeat offense constitutes an additional violation and warrants the assessment of an additional four (4) points.

C.

Disturbances of the peace at a particular location: three (3) or more violations within a two-week period.

D.

Article 225 of the penal law, gambling offenses.

E.

The alcoholic beverage control law.

F.

Section 415-a of the vehicle and traffic law, vehicle dismantlers.

G.

Sections 170.65 and 170.70 of the Penal Law, forgery or illegal possession of a vehicle identification number.

H.

Possession, use, sale 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.

I.

The agriculture and markets law, dangerous dogs where a dog is determined by a court to be a dangerous dog and a human was attacked or injured.

J.

All violations of chapter 24 of the Code of the Town of Vestal, zoning.

(3)

Violations of the following laws and regulations and commission of the following offenses shall be assigned a point value of six (6) points:

A.

Article 178 of the penal law, criminal diversion of prescription medications and prescriptions.

B.

Article 220 of the penal law, controlled substances offenses, including sale or distribution of the same.

C.

Article 221 of the penal law, offenses involving marijuana.

D.

Section 165.15, Subdivisions 6, 7, and 8, and §§ 165.40, 165.45, 165.50, 165.52, 165.54, 165.71, 165.72 and 165.73 of the penal law, theft of services, criminal possession of stolen property, and trademark counterfeiting.

E.

Article 158 of the penal law, welfare fraud.

F.

Section 147 of the social services law, food stamp program fraud.

G.

Section 2024 of title 7 of the United States Code, Illegal Use of Food Stamps.

H.

Allowing persons in/on the building, property or place in issue in excess of occupancy limits established by the New York State Uniform Fire Prevention and Building Code.

I.

Section 3383 of the public health law, imitation controlled substances.

(4)

Violations of the following laws and regulations and commission of the following offenses shall be assigned a point value of ten (10) points:

A.

Article 230 of the penal law, prostitution offenses.

B.

Article 265 of the penal law, firearms and other dangerous weapons.

C.

Sections 260.20 and 260.21 of the penal law, unlawfully dealing with a child.

D.

Article 263 of the penal law, sexual performance by a child.

(5)

Violations of the following laws and regulations and commission of the following offenses shall be assigned a point value of twelve (12) points:

A.

Penal Law violations considered to be more serious than those enumerated in subsection (3)D. of this section, including but not limited to murder, attempted murder, felony assault, felony attempted assault, felony arson, felony attempted arson, felony sex offenses, felony attempted sex offenses and felony crimes related to the unlawful manufacture of methamphetamine or other illegal drugs.

Testimony means oral, written or other documented evidence tending to show or prove the truth of the matter asserted.

Violation means conduct, or evidence of conduct, prohibited under this chapter. A violation does not require criminal prosecution and conviction but only a preponderance of evidence that the prohibited conduct is occurring or has occurred. Evidence of prohibited conduct and/or illegal business activity conduct may include, but is not limited to, police reports, investigative reports, execution of search warrants, results of police surveillance, arrest and/or conviction based on 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 business activities at the property. Notwithstanding the foregoing, evidence obtained during the course of responding to a request for assistance at a property, place, building or, in the case of a multiunit building, the specific building unit where the violation occurred shall not constitute evidence of prohibited conduct under this chapter, unless an owner, manager or tenant has participated in or persistently condones or allows such public nuisance to occur.

Yard means an open area on a lot which is open to the sky and that is unoccupied by any land use or activity except as may otherwise be provided in article 1 chapter 24, zoning, of the Code of the Town of Vestal.

(LL 6 of 2023, 6-14-2023)

This article shall be applicable to all public nuisances as determined in accordance with the definitions contained in article I of this chapter.

(LL 6 of 2023, 6-14-2023)

(a)

The town attorney may bring and maintain a civil proceeding in the name of the town for the following types of relief:

(1)

Permanent injunction.

(2)

Temporary closing order.

(3)

Temporary restraining order.

(4)

Temporary injunction.

(5)

Civil penalties.

(b)

Summons. The town attorney shall name as defendants the building, apartment, structure or place wherein the public nuisance is being conducted, maintained or permitted by describing it by Tax Map number and/or street address and at least one (1) of the owners of some part of or interest in the property.

(c)

Complaint.

(1)

The town attorney shall bring and maintain a civil proceeding in the name of the Town of Vestal in the Supreme Court of Broome County or any other court of competent jurisdiction to permanently enjoin the public nuisance and the persons conducting, maintaining or permitting the public nuisance as defined in article I of this chapter from further conducting, maintaining, or permitting the public nuisance in the manner provided in article II of this chapter. The owner, operator, manager and/or lessee of a building, apartment, structure or place wherein the public nuisance is being conducted, maintained or permitted may be made defendants in the action.

(2)

The venue of such action shall be in the county where the public nuisance is being conducted, maintained or permitted.

(3)

The existence of an adequate remedy at law shall not prevent the granting of temporary or permanent relief pursuant to this chapter.

(4)

The civil action shall be commenced by the filing of a summons and complaint alleging the facts constituting the public nuisance.

(5)

The complaint shall name as defendants the building, apartment, structure or place wherein the nuisance is being conducted, maintained or permitted by describing it by tax map number and/or street address and at least one (1) of the owners who possesses some part of or an interest in the property.

(6)

Any complaint filed under this chapter shall be verified or accompanied by an affidavit(s) for purposes of showing that the owner or his or her agent or manager has notice of the nuisance and has had an opportunity to abate the nuisance. The town attorney will give the owner and any designated property agent or manager written notice of the nuisance and ten (10) business days to personally meet with and provide to the town attorney a written plan to abate the nuisance within thirty (30) days. If part of the plan to abate the nuisance is to evict a tenant, then the owner will commence the eviction proceeding within ten (10) business days from the meeting with the town attorney or on the earliest possible date allowed by law if such date is longer than ten (10) business days from the date of said meeting. The complaint or affidavit shall contain a description of the attempts by the town attorney to notify and locate the owner of the property and/or the owner's agent. The complaint or affidavit shall describe the factual circumstances giving rise to the determination that the property constitutes a public nuisance.

(d)

In rem jurisdiction over building, apartment, structure, or place. In rem jurisdiction shall be complete over the building, apartment, structure or place wherein the public nuisance is being conducted, maintained or permitted by affixing the summons to the door of the building, apartment, structure or place and by mailing the summons by certified or registered mail, return receipt requested, to one (1) of the owners who possesses some part of or an interest in the property. Proof of service shall be filed within five (5) days thereafter with the clerk of the court designated in the summons. Service shall be complete upon such filing.

(e)

Service of summons on other defendants. Defendant(s), other than the building, apartment, structure or place wherein the public nuisance is being conducted, maintained or permitted, shall be served with the summons as provided in the civil practice law and rules.

(f)

Notice of pendency. With respect to any action commenced or to be commenced pursuant to this chapter, the town may file a notice of pendency pursuant to the provisions of article 65 of the civil practice law and rules.

(g)

Presumption of ownership. The owner of the real estate affected by the action shall be presumed to be the person in whose name the real estate is recorded in the office of the Town of Vestal Assessor and/or the office of the Clerk of the County of Broome.

(h)

Presumption of employment or agency. Whenever there is testimony that a person was the manager, operator, supervisor, or in any other way in charge of the premises at the time a public nuisance was being conducted, maintained or permitted, such evidence shall be presumptive that he or she was an agent or employee of the owner or lessee of the building, structure or place considered to be a nuisance.

(i)

Penalty. 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 defendant has conducted, maintained, condoned or permitted a public nuisance defined in article 1 of this chapter, a penalty may be awarded in an amount not to exceed one thousand (1,000) dollars for each day it is found that the defendant conducted, maintained or permitted the public nuisance after notice to abate has been given by the town. Upon recovery, such penalty shall be paid into the general fund of the town.

(j)

Enforcement. A judgment pursuant to this chapter shall be enforced by the Town of Vestal and the office of the town attorney.

(LL 6 of 2023, 6-14-2023)

(a)

A judgment awarding a permanent injunction, pursuant to this chapter, may direct the Town of Vestal through its departments or by third-party contractors to seize and remove from the building, apartment, structure and/or place all material, equipment and instrumentalities used in the creation and maintenance of the public nuisance and shall direct the sale by the Town of Vestal of such property in the manner provided for the sale of personal property under execution pursuant to the provisions of the civil practice law and rules. The net proceeds of any such sale, after deduction of the lawful expenses involved, shall be paid into the general fund of the town.

(b)

A judgment awarding a permanent injunction pursuant to this chapter may authorize agents of the town to remove and/or correct violations of the town Code. Any and all costs associated with said removal or repairs shall become a lien against the property and shall have priority over any prior mortgage or other lien that exists on said property, except tax and assessment liens and any nuisance abatement lien.

(c)

A judgment awarding a permanent injunction, pursuant to this chapter, may direct the closing of the building, apartment, structure or place by the Town of Vestal, to the extent necessary to abate the nuisance, and shall direct the Town of Vestal to post a copy of the judgment and a printed notice of such closing conforming to the requirements of § 206-8H of this chapter. Any person who defaces, destroys or removes such a posted judgment or notice while it remains in force, in addition to any other punishment prescribed by law, shall be guilty of a violation punishable by a fine of not more than two hundred fifty (250) dollars or by imprisonment not exceeding fifteen (15) days, or by both, provided such judgment contains therein a notice of such penalty.

(d)

The closing directed by the judgment shall be for such period as the court may direct, but in no event shall the closing be for a period of more than one (1) year from the posting of the judgment provided for in this section.

(e)

If the owner shall file a bond in the value of the property ordered to be closed and submits proof to the court that the nuisance has been abated and will not be created, maintained, condoned or permitted for such period of time as the building, apartment, structure or place has been directed to be closed in the judgment, the court may vacate the provisions of the judgment that direct the closing of the building, apartment, structure or place.

(f)

A closing by the Town of Vestal pursuant to a judgment providing for the closing of a building, apartment, structure or place shall not constitute an act of possession, ownership or control by the Town of Vestal of the closed premises.

(g)

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 five thousand (5,000) dollars, imprisonment not exceeding six (6) months, or both.

(h)

Upon the request of the town attorney or the town board, the town of Vestal Police Department, New York State Police or the Broome County sherriff's department shall assist in the enforcement of a judgment awarding a permanent injunction entered in an action brought pursuant to this chapter.

(i)

A judgment rendered awarding a permanent injunction pursuant to this chapter shall be and become a lien upon the building, apartment, structure or place named in the complaint in such action, such lien to date from the time of filing a notice of liens pending in the office of the Broome County clerk being the county wherein the building, apartment, structure or place is located. Every such nuisance abatement lien shall have priority over any mortgage or other lien that exists prior to such filing except tax and assessment liens.

(j)

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 by affidavit or such other evidence as may be submitted, the actual costs, expenses and disbursements of the town in investigating, bringing and maintaining the action, including reasonable attorney's fees and court costs.

(LL 6 of 2023, 6-14-2023)

(a)

Preliminary injunction.

(1)

Pending an action for a permanent injunction as provided for in this article, the court may grant a preliminary injunction enjoining a public nuisance within the scope of this chapter and the person or persons conducting, maintaining or permitting the public nuisance from further conducting, maintaining or permitting the public nuisance. An order granting a preliminary injunction shall direct a trial of the issues at the earliest possible time. Where a preliminary injunction has been granted, the court shall render a decision with respect to a permanent injunction at its earliest convenience after the conclusion of the trial.

(2)

Enforcement of preliminary injunction. A preliminary injunction shall be enforced by the town attorney and/or the Town of Vestal police department, New York State Police or the Broome County sherriff's department.

(3)

Preliminary injunctions, inventory, closing of premises, posting of order and notices, and offenses. If the court grants a preliminary injunction, the provisions of this article shall be applicable.

(b)

Motion papers for preliminary injunction. The town attorney shall show, by affidavit and such other evidence as may be submitted, that there is a cause of action for a permanent injunction abating a nuisance within the scope of this chapter.

(c)

Temporary closing order.

(1)

If, on a motion for a preliminary injunction pursuant to this section, the town attorney shall show by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained, condoned or permitted and that the public health, safety or welfare requires an immediate, temporary closing order, the court may issue without notice a temporary order closing only so much of the building, apartment, structure or place as is necessary to temporarily abate the nuisance that is being conducted, maintained or permitted, pending a subsequent order of the court granting or denying the preliminary injunction. Upon granting a temporary closing order, the court shall direct the holding of a hearing for the preliminary injunction at the earliest possible time; a decision on the motion for a preliminary injunction shall be rendered by the court at the earliest possible time thereafter.

(2)

Service of temporary closing order. Unless the court orders otherwise, a temporary closing order, together with the papers upon which it was based and a notice of hearing for the preliminary injunction, shall be personally served, in the same manner as a summons as provided in the Civil Practice Law and Rules.

(d)

Temporary restraining order.

(1)

A temporary restraining order may be granted pending a hearing for preliminary injunction where it appears by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained, or permitted and that the public health, safety, or welfare immediately requires the granting of a temporary restraining order. This order shall restrain the defendants and all persons from removing or transferring off the property or in any manner interfering with the fixtures and movable property used in conducting, maintaining or permitting the public nuisance and from further conducting, maintaining or permitting the public nuisance. A temporary restraining order may be granted without notice, pending order of the court granting or refusing the preliminary injunction and until further order of the court. Upon granting a temporary restraining order, the court shall direct the holding of a hearing for the preliminary injunction.

(2)

Service of temporary restraining order. Unless the court orders otherwise, a temporary restraining order and the papers upon which it was based and a notice of hearing for the preliminary injunction shall be personally served in the same manner as a summons as provided in the civil practice law and rules.

(e)

Temporary closing order; temporary restraining order.

(1)

If, on motion for a preliminary injunction, the town attorney submits evidence warranting both a temporary closing order and a temporary restraining order, the court shall grant both orders.

(2)

Enforcement of temporary closing orders and temporary restraining orders. Temporary closing orders and temporary restraining orders shall be enforced by the town attorney and the Town of Vestal police department.

(f)

Inventory upon service of temporary closing orders and temporary restraining orders. The officers serving a temporary restraining order shall forthwith make and return to the court an inventory of personal property used in conducting, maintaining or permitting a public nuisance within the scope of this chapter and shall enter upon the building, apartment, structure or place for such purpose. Such inventory shall be taken in any manner which is deemed likely to evidence a true and accurate representation of the personal property subject to such inventory, including, but not limited to, photographing such personal property.

(g)

Closing of premises pursuant to temporary closing orders and temporary restraining orders. The officers serving a temporary closing order and/or a temporary restraining order shall, upon service of the order, command all persons present in the portion of the building, apartment, structure or place that is subject to the order to vacate the premises forthwith. Upon the vacation of the relevant portion of the building, apartment, structure, or place, the portion of said building, apartment, structure or place shall be securely locked and all keys delivered to the officers serving the order who thereafter shall deliver the keys to the fee owner, lessor or lessee of the building, apartment, structure or place involved. If the fee owner, lessor or lessee is not at the building, apartment, structure or place when the order is being executed, the officers shall securely padlock the premises and retain the keys until the fee owner, lessor or lessee of the building, apartment, structure or place is ascertained, at which time the officers shall deliver the keys to such owner, lessor or lessee if such individual resides within Broome County.

(h)

Posting of temporary closing orders and temporary restraining orders. Upon service of a temporary restraining order, the officer shall post a copy thereof in a conspicuous place or upon one (1) or more of the principal doors at entrances of such premises where the public nuisance is being conducted, maintained or permitted. In addition, where a temporary restraining order has been granted, the officers shall affix, in a conspicuous place or upon one (1) or more of the principal doors at entrances of such premises, a printed notice that shall state that certain described activity is prohibited by court order and that removal of property is prohibited by court order. If the temporary restraining order directs that the premises are to be closed by court order, the notice shall contain the legend "Closed by Court Order" in block lettering of sufficient size to be observed by anyone intending or likely to enter the premises, the date of the order, the court from which issued and the name of the office or agency posting the notice. Any person who defaces, destroys or removes such a posted order 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 one thousand (1,000) dollars or by imprisonment not exceeding ninety (90) days, or by both, provided such order or notice contains therein a notice of such penalty. The Town of Vestal Police Department, New York State Police or Broome County Sherriff's Department shall, upon the request of the town attorney or the town board, assist in the enforcement of this subsection.

(i)

Intentional disobedience of or resistance to a temporary restraining order or injunction. Intentional disobedience of, or resistance to, a temporary restraining order or preliminary or permanent injunction shall, in addition to any other punishment prescribed by law, be punishable on conviction by a fine of not more than five thousand (5,000) dollars or by imprisonment not exceeding six (6) months or by both.

(j)

Temporary restraining order or preliminary injunction bond may be required. A temporary restraining order or preliminary injunction shall not issue under this chapter except upon the giving of a bond or security by the applicant, in the amount of one thousand (1,000) dollars, for the payment of such costs and damages as may be incurred or suffered by any party who is found to be wrongfully restrained or enjoined. A bond or security shall not be required of the State of New York, municipal corporations, or political subdivisions of the State of New York.

(LL 6 of 2023, 6-14-2023)

(a)

Temporary restraining order to be vacated; inspection provision.

(1)

A temporary restraining order may be vacated by the court upon notice to and right to object by the town attorney when a defendant gives an undertaking and the court is satisfied that the public health, safety or welfare will be protected adequately during the pendency of the action. The undertaking shall be in an amount equal to the assessed valuation of the building, structure or place where the public nuisance is being conducted, maintained or permitted or in such other amount as may be fixed by the court. In the event the court should issue a permanent injunction against the defendant(s), he/she/they shall pay to the Town its actual costs, expenses and disbursements in investigating, bringing and maintaining the action, including reasonable attorney's fees and court costs.

(2)

An order vacating a temporary closing order or a temporary restraining order shall include a provision authorizing the Town or its authorized officers, agents or representatives to periodically inspect, without notice, the subject building, apartment, structure or place, during the pendency of the action, for the purpose of ascertaining whether or not the public nuisance has been resumed.

(3)

Willful failure to cooperate with an inspection provision of an order vacating a temporary restraining order or temporary closing order, in addition to any other punishment prescribed by law, shall be punishable on conviction by a fine of not more than five thousand (5,000) dollars, imprisonment not exceeding six (6) months, or both. The Town of Vestal Police Department, New York State Police or Broome County Sheriff's Department shall, upon the request of the Town, assist in the enforcement of an inspection provision of an order vacating a temporary restraining order or temporary closing order.

(b)

Vacating a preliminary injunction or a temporary restraining order. When the defendant gives an undertaking in the amount of the civil penalty demanded in the complaint, together with costs, disbursements and the projected annual costs of the prosecution of the action, as determined by the court, upon a motion on notice to the town Attorney, a temporary injunction or a temporary restraining order may be vacated by the court. The provisions of the civil practice law and rules governing undertakings shall be applicable to this chapter.

(LL 6 of 2023, 6-14-2023)

(a)

Generally, pending an action pursuant to this chapter, the court may grant a preliminary injunction enjoining a defendant from making a bulk transfer as defined in this section.

(b)

If, on a motion for a preliminary injunction of a bulk transfer, the town attorney shall show by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained, condoned or permitted, a temporary restraining order may be granted without notice restraining the defendants and all persons from making or permitting a "bulk transfer," as defined in this article, pending order of the court granting or refusing the preliminary injunction and until further order of the court. Application for such a temporary restraining order shall be made pursuant to § 206-8 of this article.

(c)

"Bulk transfer" defined. A "bulk transfer" is any transfer of a major part of the materials, supplies, merchandise or other inventory or equipment of the transferor in the building, apartment, structure or place where the public nuisance is being conducted, maintained or permitted that is not in the ordinary course of the transferor's business.

(d)

Enforcement of preliminary injunction. A preliminary injunction shall be enforced by the Town Attorney and the Town of Vestal police department.

(e)

Preliminary injunction; inventory. If the court grants a preliminary injunction, the provisions of § 15-8 of this article shall be applicable.

(LL 6 of 2023, 6-14-2023)

(a)

Appointment, duration and removal. In any action wherein the complaint alleges that the public nuisance is being conducted or maintained in the residential portions of any building, apartment or structure or portion thereof which are occupied in whole or in part as the home, residence or sleeping place of one (1) or more human beings, the court may, upon motion on notice by the plaintiff, appoint a temporary receiver to manage and operate the property during the pendency of the action in lieu of a temporary closing order. A temporary receivership shall not continue after final judgment unless otherwise directed by the court. Upon the motion of any party, including the temporary receiver, or on its own initiative, the appointing court may remove a temporary receiver at any time.

(b)

Powers and duties. The temporary receiver shall have such powers and duties as the court shall direct, including, but not limited to, collecting and holding all rents due from all tenants, leasing or renting portions of the building, apartment or structure, making or authorizing other persons to make necessary repairs or to maintain the property, hiring security or other personnel necessary for the safe and proper operation of a dwelling, prosecuting or defending suits flowing from his or her management of the property and retaining counsel therefor, and expending funds from the collected rents in furtherance of the foregoing powers.

(c)

Oath. A temporary receiver, before entering upon his or her duties, shall be sworn or shall affirm faithfully and fairly to discharge the trust committed to such receiver. the oath or affirmation may be waived upon consent of all parties.

(d)

Undertaking. A temporary receiver shall give an undertaking, in an amount to be fixed by the court making the appointment, that such receiver will faithfully discharge his or her duties.

(e)

Accounts. A temporary receiver shall keep written accounts itemizing receipts and expenditures, and describing the property and naming the depository of receivership funds, which shall be open to inspection by any person having an apparent interest in the property. Upon motion of the temporary receiver, or of any person having an apparent interest in the property, the court may require the keeping of particular records, or direct or limit inspection, or require presentation of a temporary receiver's accounts. Notice of motion for the presentation of a temporary receiver's accounts shall be served upon the sureties on the temporary receiver's undertaking as well as upon each party.

(LL 6 of 2023, 6-14-2023)

This article shall not be construed to exclude any other remedy provided by law for the protection of the health, safety and welfare of the people of the Town of Vestal.

(LL 6 of 2023, 6-14-2023)

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Commercial garage means a business repairing motor vehicles or any part thereof.

Disabled vehicle means a vehicle not within the definition of a junk vehicle which is registered for use on public highways which is inoperative, not in a condition for legal use on the public highways, or which is in need of repairs and is held for repairs on the premises for more than ten (10) days.

Junk vehicle means:

(1)

Any motor vehicle, whether automobile, bus, trailer, truck, tractor, mobile home, motorcycle, motor bicycle, minibicycle or snowmobile, or any other contraption originally intended for travel on the public highways, which is abandoned, stored, left or located by its owner or any other person, or is permitted or condoned to be abandoned, stored, left or located by its owner or any other person, on public or private premises in the town; or

(2)

Any motor vehicle outside any establishment duly licensed by the town for the storage of junk vehicles which:

a.

Is not registered by the state for operation on public highways and which has not been registered during the preceding twelve (12) months.

b.

Is not currently registered and is not in a condition for legal use on the public highways. A vehicle which is in condition to pass the requirements for the state motor vehicle inspection sticker shall be deemed to be in condition for legal use on the public highways; the lack of a current registration or of a current inspection permit shall not be considered in determining whether a vehicle is in such condition.

c.

Is no longer intended to be used on the public highways, the condition of the vehicle and circumstances surrounding its storage or abandonment being admissible for purposes of determining such intent.

d.

Is being held or used for the purpose of resale of used parts therefrom or for the purpose of reclaiming for use some or all of the materials therein or for the purpose of disposing of the same.

Open storage means storage other than in a completely enclosed structure, such as a garage, which is constructed of wood, brick or metal.

Repair settlement means determination by whatever means, including settlement of a claim, arbitration or legal action that any person other than the owner of a vehicle is liable to pay or will pay for the repair of damage to a vehicle resulting from any vehicular accident.

Wrecker means any business operating a vehicle for towing or hauling other motor vehicles.

Wrecker-commercial garage means any business operating as a wrecker and as a commercial garage or any two (2) businesses operating such two (2) businesses for the same parcel of property or any two (2) such businesses having fifty (50) percent common ownership.

(Code 1966, § 17-3)

State Law reference— Definitions and rules of construction generally, § 1-2.

A clean, wholesome, attractive environment is declared to be of importance to the health and safety of the inhabitants and the safeguarding of their material rights against unwarranted invasion and, in addition, such an environment is deemed essential to the maintenance and continued development of the economy of the town and the general welfare of its citizens. The unrestrained accumulation of motor vehicles not in operating condition is a hazard to such health, safety and welfare of citizens of the town, necessitating the regulation, restraint and elimination thereof. This article is enacted in recognition of the fact that even a single junk vehicle abandoned or stored on private or public property:

(1)

Can constitute both a public and private nuisance.

(2)

Is a source of potential hurt to children and others who find them an attractive nuisance.

(3)

Is replete with broken glass, sharp torn metal edges and points, gasoline remaining in tanks of a highly explosive nature and combustible nature and hurtful acids in batteries, to mention but a few of the obvious sources of physical hurt found in junk vehicles.

(4)

Constitutes a blight on the landscape.

(5)

Destroys the aesthetic qualities of the town and is generally unsightly.

(6)

Tends to depreciate not only the property on which it is located but also the property of other persons in the neighborhood and the town generally.

(7)

Makes the town a less safe and less pleasant place in which to live and to do business.

(8)

Damages the welfare of the town as a whole.

(9)

Tends to result in uncontrolled grass and the collection of debris.

(10)

Tends to be a breeding ground for insects, rodents and similar harmful creatures.

(Code 1966, § 17-2)

The permit officer and/or the town police department may make reasonable rulings and may issue reasonable regulations in furtherance of and consistent with this article.

(Code 1966, § 17-12)

Open storage of one (1) or more junk vehicles shall not be permitted on private or public property within the town, except as permitted by this article.

(Code 1966, § 17-4)

The town shall give written notice by registered or certified mail or personal service on the owner of the junk vehicle or on the owner or the tenant of any property on which a junk vehicle is openly stored. The notice shall direct the person so served (regardless of the ownership of the junk vehicle if the property owner or tenant is served) to terminate the open storage of such vehicle within the town, within ten (10) days of personal service or within thirteen (13) days from posting where service is by registered or certified mail. The notice shall state that if the person served contends that such vehicle is not a junk vehicle that he shall notify the town police department in writing of such contention within ten (10) days if served personally or within thirteen (13) days if served by certified or registered mail (the failure of the person served to so notify the town police shall not be deemed in any way to be an admission that the vehicle is a junk vehicle and no presumptions shall arise from such failure); and shall allow a representative of the town and the person served or a representative of the person served, if the latter so desires, to inspect the vehicle within five (5) days of notification. Within five (5) days after the inspection, the town shall inform the person served of its findings in writing, by registered or certified mail, or personal service. If the findings are that one (1) or more of the junk vehicles specified in the original notice are being stored by the person served with the original notice, the person shall terminate open storage of the junk vehicle within the town within five (5) days of personal service of the finding or within eight (8) days from posting where service of such findings is by registered mail. If the person so served institutes a proceeding under article 78 [§ 7801 et seq.] of the Civil Practice Law and Rules to set aside the determination, termination of storage shall not be required pending a decision in the proceeding. If the decision upholds the town's determination open storage of the vehicle within the town shall be terminated within five (5) days following service of notice of entry of the court's order, if an appeal is taken and a court stay of execution is granted, within five (5) days after expiration of the stay of execution.

(Code 1966, § 17-5)

(a)

Upon written application and the deposit of thirty dollars ($30.00), the town permit officer may issue a permit for the open storage of a vehicle within the definition of a junk vehicle under the terms of this article, pending the making of such repairs as are necessary to place the vehicle in a condition for legal operation for use on a public highway. The application shall include a representation by the applicant that the applicant intends, within the permit period, to repair the vehicle so that it will be in a condition for legal operation on public highways and that if the repairs have not been made by the end of the permit period, the applicant will terminate open storage of the vehicle within the town by the end of the permit period. The applicant shall state:

(1)

Whether he is the owner of the vehicle or, if not, the name and address of the owner.

(2)

A complete description of the vehicle.

(3)

Full details of the most recent registration of the vehicle by the state.

(4)

The most recent inspection of the vehicle and its most recent inspection sticker.

(5)

Full details of the defects of the vehicle which are to be repaired under the permit.

(6)

Whether the applicant will make the repairs himself or, if not, the person who will make the repairs.

(7)

The estimated cost of the repairs.

(8)

The place where the vehicle is presently stored.

(9)

The place where the repairs will be made.

(10)

Whether the applicant is the owner or tenant in possession of the premises where the vehicle is stored and where it will be repaired.

(b)

If the applicant is the owner or tenant in possession of the premises, as a part of the application, he shall give to the town and its designees a license to enter such premises for the purposes of inspecting the vehicle and for removing the vehicle from the premises following the expiration of the permit if at such time such vehicle is a junk vehicle. If the applicant is not the owner or tenant in possession of such premises, the application shall include a license from the owner or tenant in possession of the premises to permit such inspection and removal. Such licenses shall also state that the town shall have the right to make such inspection and removal from any other premises owned by the applicant or the licensor to which such vehicle may be moved within the town. Such license shall also state that it is irrevocable for a period of ninety (90) days from the expiration of the permit.

(c)

A fee of ten dollars ($10.00) shall be charged for the permit, and the applicant shall deposit with the town thirty dollars ($30.00) which deposit shall be refunded if within the permit period the vehicle shall cease to be a junk vehicle, or open storage of such vehicle within the town is terminated. If neither condition is complied with, the deposit shall be forfeited to the town.

(d)

A separate permit shall be required for each separate vehicle to be repaired. Such permits shall be issued for not in excess of sixty (60) days and may be extended once only for up to fifteen (15) days upon the payment of an additional fee of ten dollars ($10.00). Inspection after the permit period has expired shall be at a time specified in a notice of inspection at least one (1) day following personal service or three (3) days following service by registered or certified mail. The applicant may participate in the inspection. The procedures in section 15-25 dealing with service of the determination, time for removal following such service and for stays on appeal shall apply to such post-permit proceedings.

(Code 1966, § 17-6)

(a)

In this section "open storage" means storage outside a building. The town board may license the open storage of junk vehicles and disabled vehicles subject to such conditions as it deems appropriate to protect neighboring private and public property (including public rights-of-way) including:

(1)

The junk vehicle or disabled vehicle shall be stored in such part of the premises as reasonably specified in the license, locations to the front of the property and to the front or side of a neighboring residence or other principal building to be avoided where reasonably practical. The town board may limit the size of the storage area. The storage area shall be enclosed with a solid fence at least eight (8) feet high on all sides and at least eight (8) feet high above the grade level of the street or streets adjoining the premises on the side adjoining the street or streets. Vehicles stored at the site shall not be visible within three hundred (300) yards from the storage area at a height of six (6) feet.

(2)

All vehicles shall be stored on the ground, and no vehicle shall be piled upon another vehicle.

(3)

The minimum size and maximum size of the storage area may be designated by the town board, and the area specified shall be fenced off from the remaining area of the lot or otherwise delineated, and storage of junk and disabled cars shall be limited to such delineated areas. However, vehicles awaiting repairs may be stored outside the storage area for up to ten (10) days.

(4)

The license shall be conditioned upon continued maintenance of all requirements of this section and of all additional requirements of the license and shall be revocable by the town board if any violations are not cured within five (5) days of personal service or eight (8) days of service by registered mail of notice to cure any violations.

(5)

The town shall have a license to enter the premises and the storage area at any reasonable hour to inspect for violations of the license.

(6)

The license shall expire upon the removal of all junk and disabled vehicles from the premises licensed or on December 31 of the year in which it is issued. Renewal licenses may be issued by the town clerk unless prior to December 1 of any year the town adopts a resolution to notify the licensee that the license will not be renewed or that an application for renewal must be made to the town board.

(7)

An annual fee of thirty dollars ($30.00) shall be charged for the license.

(8)

All persons having an ownership interest in the licensed parcel or having a leasehold interest in such parcel shall be designated as licensees on the license. No license shall be issued which would result in any person being designated as a licensee on licenses for the storage of junk vehicles or disabled vehicles on more than one (1) site.

(9)

There shall be no sale of salvaged vehicle parts from any junk or disabled vehicle located on the premises and no installation on the premises into other vehicles of parts taken from junk or disabled vehicles located on the premises.

(b)

No license, fee or screening shall be required for not over five (5) vehicles currently being actively used in farming or commercial operations, and no fee shall be required and the license may waive in whole or in part the requirement of screening or fencing for not over two (2) vehicles not being used for farming or commercial purposes if:

(1)

The vehicles are being used on private property and are being held for continuing operation on private property and are not being held primarily for nonoperating purposes.

(2)

The vehicles, if not in condition for legal operation on public highways, are in a condition so that they can be operated and so that operation on private property will not be unduly dangerous to the operator, passengers or others.

(3)

The vehicles are in such condition that there is no sharp metal, broken glass or other condition which would endanger children who might be attracted to play around the vehicles.

(c)

The waiver of fencing or screening requirements may be revoked at any time that the town permit officer determines that the vehicles are no longer continuing to be used for operation on private property or that operation would be unduly hazardous or that damage to them makes them unduly hazardous to children, each as provided in the preceding subparagraphs. Within twenty (20) days of personal service or twenty-three (23) days of posting of service by registered or certified mail, screening or fencing shall be provided as specified by the waiver revocation notice or the licensee shall submit satisfactory proof to the town police department that the vehicle again qualifies for the waiver, or open storage within the town shall be terminated. Appeal and stay of execution shall extend the time for such compliance in the same manner as provided for in section 15-25.

(Code 1966, § 17-7)

The town police department and other representatives of the town shall have the right to enter and inspect at any reasonable hour any premises on which vehicles are openly stored and to inspect such vehicles. If within the time provided for such removal following service of a determination that a vehicle is a junk vehicle (including any extension of time resulting from any appeal or stay of execution), the open storage of the junk vehicle within the town is not terminated, the junk vehicle shall be automatically deemed a public nuisance, and the town or representatives of the town shall have the right to enter and remove such vehicle from any premises within the town where the vehicles may be found and to dispose of the vehicle. Neither the town nor any person acting on behalf of the town shall be liable to any person for the disposal or destruction of junk vehicles. The right of entry shall not be limited in any way by the existence or lack of existence of a request, authorization, license or other consent or approval of entry, inspection or removal.

(Code 1966, § 17-8)

(a)

If operations are permitted by chapter 24, including rights under any nonconforming uses, and including any limitations, restrictions or conditions established according to law by the town board, the zoning board of appeals, the planning board or any court of competent jurisdiction and are not in violation of any applicable private restrictive covenant or agreement filed or recorded in the county clerk's office:

(1)

Any wrecker may store junk vehicles on one (1) site, but not on more than one (1) site, within the town, provided that no junk vehicle is so stored within the town for more than fifteen (15) days.

(2)

Any commercial garage may store junk vehicles on any one (1) site, but not on more than one (1) site, within the town, pending and during repair of such vehicles, provided that no junk vehicle is so stored within the town for more than sixty (60) days, or if a permit for extended storage is issued, for sixty (60) days, plus any extension permitted.

(3)

Any wrecker-commercial garage may store junk vehicles on any one (1) site, but not on more than one (1) site within the town, provided that if such storage of any junk vehicle exceeds fifteen (15) days, that it shall be pending and during repair and shall not exceed an additional forty-five (45) days, or if a permit for extended storage is issued, forty-five (45) days plus any extensions permitted. Where the repair settlement is pending, in good faith, the foregoing time periods shall not start to run until either a repair settlement has been made or the junk vehicle has been stored within the town for four (4) months.

(b)

For good cause shown, the permit officer may extend by permit any time period for such period of time as he determines is reasonably necessary to permit repair of a junk vehicle. The permit officer may refuse to permit extended storage if he determines that the applicant has not attempted to complete repairs within the regular time period, is not in good faith, or is in violation of this section in any way. A fee of five dollars ($5.00) shall be paid for each permit and the applicant shall agree that the vehicle will be repaired or removed from the town at the end of the extension or any subsequent extension.

(c)

Wreckers, commercial garages and wrecker-commercial garages shall keep records showing the make, engine number, license plate number, if any, vehicle owner, vehicle owner's address, purpose for storage, any prior storage within twelve (12) months by them or, if known, by anyone else within the town, and the starting and ending dates of storage of each junk vehicle. Such records shall be shown to town officials upon request during business hours. Such records shall be prima facie evidence of the statements therein contained, but shall be rebuttable. In the absence of such records or other sufficient proof that a junk vehicle has not been stored in violation of this article, the operator of such businesses shall terminate storage of the vehicle within the town within five (5) days of receipt in person or within eight (8) days of the mailing of a notice to terminate such storage unless:

(1)

He contends that the vehicle is not a junk vehicle and requests an inspection under section 15-25.

(2)

He obtains a permit for extended storage for repair under this section.

(3)

He establishes by sufficient proof that the storage period has not expired.

(d)

Anything in this section notwithstanding, any disabled vehicle may be stored on the premises of any gasoline station for up to seven (7) days. For this purpose, a vehicle shall be deemed disabled if within twenty-four (24) hours prior to such storage its condition changes so that it becomes a junk vehicle.

(Code 1966, § 17-9)