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HomeMy WebLinkAboutLL 05 of 2011 Property Maintenance TOWN OF ITHACA LOCAL LAW NO. 5 OF THE YEAR 2011 A LOCAL LAW DELETING CHAPTER 205 OF THE TOWN OF ITHACA CODE, TITLED "PROPERTY MAINTENANCE",AND ADDING A NEW CHAPTER 205, TITLED "PROPERTY MAINTENANCE" Be it enacted by the Town Board of the Town of Ithaca as follows: Section 1. Chapter 205 of the Town of Ithaca Code titled"Property Maintenance", is deleted in its entirety. Section 2. The Town of Ithaca Code is hereby amended by adding Chapter 205, titled"Property Maintenance", reading as follows: "Chapter 205 PROPERTY MAINTENANCE § 205-1. Purpose and authority. § 205-2. Prohibited acts. § 205-3. Penalties for offenses. § 205-4. Enforcement. § 205-5. Variance procedures. § 205-1. Purpose and authority. The purpose of this chapter is to assist in the enforcement of the Property Maintenance Code of the New York State Uniform Fire Prevention and Building Code (hereafter referred to as the "State Property Maintenance Code") and, pursuant to the authority granted to the Town of Ithaca by Town Law Article 16 of the State of New York and Executive Law Article 18 of the State of New York, to promote the general health, safety and welfare of the residents of the Town of Ithaca, protect the value of real property in the Town of Ithaca, and promote and perpetuate the attractive appearance of neighborhoods in the community,by requiring proper maintenance of real property within the Town of Ithaca. This legislation is intended to expressly supersede the provisions of New York Town Law §§ 274-a(4), 268, and 282 pursuant to the provisions of the Municipal Home Rule Law of the State of New York, specifically, but not exclusively, in relation 05/20/11 1 to the jurisdiction of the Zoning Board of Appeals, including by expanding such jurisdiction to determine matters related to New York Town Law Article 16, even if not enacted wholly pursuant to the authority of said Town Law Article 16. § 205-2. Prohibited acts. A. It shall be a violation of this chapter for any owner or other occupant of real property in the Town of Ithaca, or for any person having control of real property in the Town of Ithaca charged with the maintenance of the property, to deposit, abandon, maintain, keep or allow the accumulation on his or her real property, outside of any building, of any personal property, junk, trash, rubbish, garbage, refuse, debris, discarded materials, bulk items, and/or any other material which, if thrown or deposited as herein prohibited, tends to create a danger to the public health, safety and welfare, or creates degradation through unsightliness or noisomeness, or which creates a public or private nuisance. (1) Examples of such materials are as follows: (a) Putrescible animal and vegetable wastes resulting from the handling, preparation, cooking and consumption of food, except for composted materials placed inside an enclosure and located at least 3 feet from a property line, or composted materials located at least 10 feet from a property line if not placed inside an enclosure. (b) Putrescible and nonputrescible solid wastes (except body wastes), such as garbage, rubbish, ashes, street cleanings, dead animals, and solid market and industrial wastes. (c) Nonputrescible solid wastes consisting of combustible or noncombustible wastes, such as felled or cut trees or limbs stored within 3 feet of the property line, lumber or construction materials not actively and presently being used to construct or repair a building or make any other improvement on the premises,broken glass, discarded bedding, broken crockery, discarded furniture or toys, accumulation of items (including but not limited to magazines and other paper goods, tools and parts, paints, varnishes and lacquers, containers,boxes and jars), and similar materials or parts thereof, whether mixed together or otherwise, and in any amount. (d) Any boat, snowmobile, all-terrain vehicle, or other such device, which is in a state of disrepair or is otherwise dilapidated,broken, or abandoned. 05/20/11 2 (e) Abandoned, discarded, broken, or inoperable refrigerators, washing machines or other machinery or parts thereof. Any such items stored on any yard or lot for a period of more than 60 days shall be presumed to be abandoned. (f) Any automobile, truck, or other vehicle originally intended for use on the public highways which is no longer intended or in condition for legal use on the public highways, including such vehicles which are in a state of disrepair or otherwise dilapidated, broken, or abandoned. For the purpose of this subsection, a vehicle shall be presumed to be no longer intended or in condition for legal use on the public highways if any of the following apply: [1] It does not bear and display upon such vehicle, in a location prescribed by the Commissioner of Motor Vehicles, a current registration from the State of New York or other recognized registering jurisdiction; or [2] It does not bear and display upon such vehicle, in a location prescribed by the Commissioner of Motor Vehicles, an inspection certificate issued within the last 12 months in accordance with the laws of the State of New York or the laws of any other recognized inspecting jurisdiction if required for use on public highways; or [3] Such vehicle is not able to be moved by its own power. [4] Notwithstanding the foregoing, the following vehicles are allowed to be kept outside a building: A. Farm vehicles that meet criteria [I] and/or [3] above,provided they have been registered within the last 12 months; and B. A private vehicle meeting criteria [1], [2] and/or [3] above that is offered for sale for no longer than a 90 day period, provided that no more than one private vehicle meeting criteria [1], [2] and/or [3] above may be offered for sale on any parcel within any 12 month period. 05/20/11 3 (2) Such list of examples is not exclusive and is not in limitation of the prohibition contained in this section. B. Except to the extent that a health, safety or fire hazard is found to exist, or if the storage of such items would constitute a nuisance, it shall not be a violation of this chapter to maintain on real property items of the kind and nature set forth in subsection A above if such items are stored inside a building or if they are stored in such manner that they are not visible to neighboring properties or from a highway. C. Notwithstanding the foregoing subsection B, outside storage in a front yard of items of the kind and nature set forth in subsection A above is prohibited. "Front yard" shall have the same definition as "yard, front" in Chapter 270, Zoning, of the Town of Ithaca Code. § 205-3. Penalties for offenses. A. A violation of this chapter shall be a violation as defined in § 10.00 of the Penal Law of the State of New York and shall be punishable by a fine not to exceed$500 or a sentence of imprisonment not to exceed 15 days, or both. B. Persons and other entities that violate a provision of this chapter shall be liable for a civil penalty of up to $500 for each such violation. Each day a violation exists shall constitute a separate violation. The Attorney for the Town or his or her designee may commence an action or special proceeding against the violator in a court of competent jurisdiction to collect these penalties, together with costs, disbursements and recoverable attorneys' fees, and/or to compel compliance with this chapter or restrain by injunction any such violation. C. Violations of the State Property Maintenance Code shall be punishable as set forth in § 382 of the Executive Law of the State of New York. § 205-4. Enforcement. A. This chapter shall be enforced by the Director of Code Enforcement or any other person designated by the Town Board, and their duly appointed deputies, all herein collectively referred to from time to time as the "Code Enforcement Officer." The Code Enforcement Officer of the Town of Ithaca is hereby authorized to enforce the provisions of this chapter, the Executive Law of the State of New York, and the State Property 05/20/11 4 Maintenance Code, each as now exists or as hereafter amended,re- authorized, or re-codified. B. Upon receiving a complaint or upon any inspection of a property, the Code Enforcement Officer shall determine whether or not there appears to be a violation of this chapter and/or the State Property Maintenance Code. Upon finding or making a determination that this chapter and/or the State Property Maintenance Code has been or is being violated, the Code Enforcement Officer shall give the owner of the real property, and may also give an occupant of the real property, and/or the person having control of said real property charged with the maintenance of the property, written notice of such violation or non-compliance, and such notice shall be called and labeled as a"Failure to Maintain Property Notice" (herein, the "FMPN"). (1) Such FMPN shall contain: (a) A brief description of the premises, and for this purpose a street address is sufficient; (b) The nature and existence of the violation; (c) The provision(s) of this chapter and/or the State Property Maintenance Code that has been or is being violated; (d) An order that the violation be terminated or corrected; (e) A date by which compliance is mandated; and (f) A date by which the owner, occupant or person having control may object in writing to the notice, which objection(s) shall be deemed to be a request for a hearing before the Zoning Board of Appeals of the Town of Ithaca, established pursuant to Chapter 270, Zoning, of the Town of Ithaca Code. Such objection or request for a hearing may be filed to appeal the determination of non-compliance, the date mandated for compliance, the terms and conditions of any order for compliance, or for a variance from the requirements of this chapter, or for any other reason. (2) Written notice of the FMPN shall be considered given when: (a) Personally served upon the owner, and(where they are also recipients of the FMPN, as the case may be) any other known occupant or person having control of such real 05/20/11 5 property in the Town of Ithaca who is required to maintain the property; and (b) After also mailing the same by regular and certified mail to the owner's address as reflected in the last completed official assessment roll and to the address for the real property so affected. C. If the owner, or other occupant or person having control of real property in the Town of Ithaca, fails to remedy the violation by the date upon which compliance is mandated and fails to request a hearing by the date specified in the FMPN, the Code Enforcement Officer shall cause a compliance and remediation plan to be presented to and approved by the Town Board, and the Town shall, through such plan, cause the condition to be corrected through the use of reasonably efficient and cost effective measures to keep the expenses low and reasonable in respect to the nature of the violation and the measures needed to effect compliance with this chapter (including any necessary remediation activities). After the condition has been corrected, the Code Enforcement Officer shall file with the Accounting Department of the Town of Ithaca a statement of all the direct costs of the same, together with a 50% surcharge as compensation to the Town of Ithaca for administering, supervising, and handling said work in accord with the provisions of this chapter. The Accounting Department will verify the cost and prepare a verified statement (herein, the "Verified Statement") and file the same in the Office of the Town Clerk. The Verified Statement shall itemize and clearly state the specific amount claimed due and be delivered by: (1) Personally serving the same upon the owner, and (where they were also recipients of the FMPN, as the case may be) any other known occupant or person having control of such real property in the Town of Ithaca who is required to maintain the property; and (2) Mailing the same by regular and certified mail to the owner's address as reflected in the last completed official assessment roll and to the address for the real property so affected. D. Any person aggrieved by the filing of a Verified Statement may file a written objection thereto and request a hearing by the Town Board to challenge the validity of the Verified Statement or to determine the actual or reasonable costs of compliance or remediation incurred by the Town of Ithaca as listed in the Verified Statement. Such objection must be filed within 30 days of service and mailing of Verified Statement. Notice of the date of the hearing before the Town Board shall be served by: 05/20/11 6 (1) Personally serving the same upon the objecting party and the owner, if different; and (2) Mailing the same by regular and certified mail to the objecting party's and the owner's address (again, if different) as reflected in the last completed official assessment roll and to the address for the real property so affected. E. Absent any objection or request for a hearing, if the sum stated in the Verified Statement as due is not paid within 30 days of the date of service of the Verified Statement, the Town may file a certificate with the Tompkins County Department of Assessment stating the cost of abatement and administrative costs to the Town, as detailed in the Verified Statement, together with a statement identifying the property and landowner. The Tompkins County Department of Assessment shall in the preparation of the next assessment roll assess such unpaid costs upon such property. Such amount shall be included as a special ad valorem levy (administered as a move tax) against such property, shall constitute a lien, and shall be collected and enforced in the same manner,by the same proceedings, at the same time, and under the same penalties as are provided by law for collection and enforcement of real property taxes in the Town of Ithaca. The assessment of such costs shall be effective even if the property would otherwise be exempt from real estate taxation. F. If an objection or request for a hearing upon the FNPM is filed within the date by which the owner, or other occupant or person having control of real property in the Town of Ithaca may object to the notice or request a hearing, then the owner, or other occupant or person having control of real property in the Town of Ithaca charged with the maintenance of the property, shall be served with a written notice (as afore-described) of the time and place that the hearing before the Zoning Board of Appeals of the Town of Ithaca will take place. This hearing before the Zoning Board of Appeals of the Town of Ithaca shall be held not less than 30 days,nor more than 60 days, after the objection or request for a hearing is filed, and the determination of the Zoning Board of Appeals of the Town of Ithaca shall be made and issued to the objecting party and the owner of the subject property, if different, by: (1) Personally serving the same upon the objecting party and the owner, if different; and (2) Mailing the same by regular and certified mail to the objecting party and the owner(again, if different)to said person's address(es) as provided to the Zoning Board of Appeals of the Town of Ithaca or as reflected in the last completed official assessment roll, and to the address for the real property so affected. 05/20/11 7 G. If, upon the completion of the appeal to the Zoning Board of Appeals of the Town of Ithaca, the Zoning Board of Appeals of the Town of Ithaca denies the appeal or sets conditions of a variance, and the owner, or other occupant or person having control of real property in the Town of Ithaca charged with the maintenance of the property, fails, neglects, or refuses to terminate or correct the violation, or fails to abide by the conditions of the variance set by the Zoning Board of Appeals within 30 days of the decision being filed with the Town Clerk, then the Code Enforcement Officer shall cause the condition to be corrected through the use of reasonably efficient and cost effective measures to keep the expenses low and reasonable in respect of the nature of the violation and the measures needed to effect compliance with the law (including any necessary remediation activities). After the condition has been corrected, the Code Enforcement Officer shall then file with the Accounting Department of the Town of Ithaca a statement of all the direct costs of the same, together with a 50% surcharge as compensation to the Town of Ithaca for administering, supervising and handling said work in accord with the provisions of this chapter. The Accounting Department will verify the cost and prepare a Verified Statement and file the same in the Office of the Town Clerk. The Verified Statement shall itemize and clearly state the specific amount claimed due and be delivered by: (1) Personally serving the same upon the owner, and (where they were also recipients of the FMPN, as the case may be) any other known occupant or person having control of such real property in the Town of Ithaca who is required to maintain the property; and (2) Mailing the same by regular and certified mail to the owner's address as reflected in the last completed official assessment roll and to the address for the real property so affected. H. If an objection or request for a hearing upon the Verified Statement is filed within the date by which the owner, or other occupant or person having control of real property in the Town of Ithaca, may object to such notice, then the owner and objecting party, if different, shall be served with written notice (as afore-described) of the time and place that the hearing before the Town Board will take place. (1) This hearing before the Town Board shall be held not less than 30 days,nor more than 60 days, after the objection or request for a hearing is filed, and the determination of the Town Board shall be made and issued to all parties and the owner of the subject property by: 05/20/11 8 (a) Personally serving the same upon the objecting party and the owner, if different; and (b) Mailing the same by regular and certified mail to the objecting party and the owner(again, if different) to said person's address(es) as provided to the Town Board or as reflected in the last completed official assessment roll, and to the address for the real property so affected. (2) If the Town Board upholds the Verified Statement, and if the sum stated in the Verified Statement is not paid within 30 days of the date of the Town Board's determination, then the Town may file a certificate with the Tompkins County Department of Assessment stating the cost of abatement and administrative costs to the Town, as detailed in the Verified Statement, together with a statement identifying the property and landowner. The Tompkins County Department of Assessment shall in the preparation of the next assessment roll assess such unpaid costs upon such property. Such amount shall be included as a special ad valorem levy (administered as a move tax) against such property, shall constitute a lien, and shall be collected and enforced in the same manner, by the same proceedings, at the same time, and under the same penalties as are provided by law for collection and enforcement of real property taxes in the Town of Ithaca. The assessment of such costs shall be effective even if the property would otherwise be exempt from real estate taxation. (3) If the Town Board rules that the amount of the Verified Statement shall be adjusted downward, and if the adjusted costs of abatement and administrative costs are not paid within 30 days of the date of the determination of the Town Board, then the Town may file a certificate with the Tompkins County Department of Assessment stating the cost of abatement and administrative costs to the Town, as detailed in the Verified Statement, together with a statement identifying the property and landowner. The Tompkins County Department of Assessment shall in the preparation of the next assessment roll assess such unpaid costs upon such property. Such amount shall be included as a special ad valorem levy (administered as a move tax) against such property, shall constitute a lien, and shall be collected and enforced in the same manner, by the same proceedings, at the same time, and under the same penalties as are provided by law for collection and enforcement of real property taxes in the Town of Ithaca. The assessment of such costs shall be effective even if the property would otherwise be exempt from real estate taxation. 05/20/11 9 (4) If the Town Board invalidates the Verified Statement, or makes such other determination as to preclude the validity or enforceability of the Verified Statement, then the Town of Ithaca shall not seek to enforce the Verified Statement by collection or assessment, and instead shall take such actions as are allowed by law to compel compliance with this chapter and the State Property Maintenance Code, including, but not limited to, the pursuit of civil or criminal enforcement actions, or by re-issuance of a FNPM, if applicable. The Town Board shall not have the authority to increase the amount claimed due or owing upon any Verified Statement until and unless a new or amended Verified Statement is generated in accordance with the substantive and procedural requirements of this chapter. I. The Town's rights to carry out compliance and remediation plans and to recover the costs from the landowner are in addition to all other rights and remedies allowed by this chapter or by law or in equity. § 205-5. Variance procedures. The Zoning Board of Appeals established pursuant to Chapter 270, Zoning, of the Town of Ithaca Code may grant variances from the application of this chapter upon the following conditions: A. Any variance shall be prospective in its application and shall not relieve any person from the fines and penalties for violating this chapter by conditions that existed prior to the granting of the variance. B. An application for a variance shall be submitted to the Building and Code Enforcement Department in a form substantially indicating the name and owner of the real property, the nature of the condition for which a variance waiver is sought, and the reasons for which a variance is sought. C. The applicant shall pay the Town the same fee as that set from time to time by Town Board resolution for appeals to the Zoning Board of Appeals for area variances from zoning requirements. D. The Zoning Board of Appeals shall hold a public hearing on the application and shall publish legal notice of said public hearing at least five days prior to its date. The Zoning Board of Appeals notice of said application shall also be given to all landowners owning property adjoining the property for which a variance is sought. The Zoning Board of Appeals notice that a variance is sought shall also be posted on the property in accordance with the posting provisions of§ 270-237, Zoning, of the Town of Ithaca Code. 05/20/11 10 E. The Zoning Board of Appeals may grant a variance if it determines that the benefit to the applicant, if the variance is granted, outweighs the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the Board may consider, among other matters: (1) Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the variance; (2) Whether the benefits sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than a variance; (3) Whether the requested variance is substantial; (4) Whether the requested variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or zoning district; (5) Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals but shall not necessarily preclude the granting of the variance; (6) Whether the compliance order can or will substantially interfere with the use or enjoyment of the real property; (7) Whether granting the variance would be in keeping with the intent and spirit of this chapter and is in the best interests of the community; and (8) Whether there are special circumstances involved in the particular case, and such circumstances are recited in the minutes. F. The Zoning Board of Appeals, if it chooses to grant the variance, shall grant the minimum degree of variance as it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety, and welfare of the community. G. The Zoning Board of Appeals shall, in the granting of such variance, have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property and/or the period of time such variance shall be in effect. Such conditions may include a time limit on the variance, including a time variance related to 05/20/11 11 the occupancy of the premises by the applicant. Such conditions shall be consistent with the spirit and intent of this chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community. H. All procedures relating to applications for, hearings upon, determinations upon, and all other related procedural matters pertaining to variances, shall be in accordance with the procedures outlined for area variances in New York Town Law Article 16 and Chapter 270 of the Town of Ithaca Code, except to the extent expressly provided otherwise herein or superseded hereby. To the extent not so provided, any other procedure shall be administratively adopted by the Zoning Board of Appeals, approved by the Town Board, and published in the official Minutes of the Town Board of the Town of Ithaca. I. The actions and determinations of the Town of Ithaca,the Zoning Board of Appeals, the Town Board, and the Code Enforcement Officer, as referenced in this chapter, shall be deemed"final determinations"for purposes of Article 78 of the New York Civil Practice Laws and Rules ("CPLR"). Notwithstanding this, standing under said Article 78 of the CPLR shall only be appropriate after the exhaustion of any administrative reviews and/or appeals as provided for in this chapter." Section 2. In the event that any portion of this law is declared invalid by a court of competent jurisdiction, the validity of the remaining portions shall not be affected by such declaration of invalidity. Section 3. This local law shall take effect immediately upon its filing with the New York Secretary of State. 05/20/11 12