2006 New York Code - Violations Of The Zoning Resolution In Residential Districts; Public Nuisance; Order Of Closure.

 
    §   26-127.2  Violations  of  the  zoning  resolution  in  residential
  districts; public nuisance; order of closure. a. Any  building  or  part
  thereof that is located in a residential district, which is occupied for
  a  commercial or manufacturing use in violation of the zoning resolution
  without a valid certificate of occupancy, is hereby  declared  to  be  a
  public nuisance.
    b.  If  a  building or part thereof in which such a nuisance occurs is
  not occupied primarily as a residence, the commissioner may, in addition
  to or as an alternative to any other remedy under any other provision of
  law, after notice and the opportunity for a hearing in  accordance  with
  this  section, order the closing of such building or part thereof to the
  extent necessary to abate the nuisance.
    c. A notice of hearing with respect to an order of  closure  shall  be
  served  on  the  owner  and mortgagee of record of such building or part
  thereof and on the person alleged to be occupying such building or  part
  thereof for commercial or manufacturing use in the following manner:
    (1)  service may be made on the owner by delivering such notice to the
  owner or to an agent of the owner or to a person  of  suitable  age  and
  discretion  at  the  residence  or place of business of the owner or, if
  upon reasonable  application  such  delivery  cannot  be  completed,  by
  affixing  such  notice  in  a  conspicuous place at the owner's place of
  business or residence or by placing it under the entrance door at either
  of such locations or by delivering such notice to a person  employed  by
  the  owner to work at or to manage or maintain the premises at which the
  nuisance is located and, in all instances except personal delivery  upon
  such owner by mailing the notice of hearing as follows:
    (i)   to   the  person  registered  with  the  department  of  housing
  preservation and development as the owner or agent of the  premises,  at
  the address filed with such department in compliance with article two of
  subchapter   four   of   chapter   two  of  title  twenty-seven  of  the
  administrative code; or
    (ii) to the person designated as owner of the building  or  designated
  to  receive  real  property  tax  or water bills for the building at the
  address for such person contained in one of the files  compiled  by  the
  department of finance for the purpose of the assessment or collection of
  real  property  taxes  and  water charges or in the file compiled by the
  department of finance from real property transfer forms filed  with  the
  city register upon the sale or transfer of real property; or
    (iii)  to  the  person  in  whose name the real estate affected by the
  order of the commissioner is recorded in the office of the city register
  or the county clerk as the case may be at the address set forth  on  the
  recorded instrument.
    (2)  service may be made on an owner that is a corporation pursuant to
  section three hundred six of  the  business  corporation  law;  however,
  service  upon  a  corporation  shall  be  deemed  to have been completed
  forty-five days following service upon the secretary of state;
    (3) service may be made upon mortgagees  of  record  by  mailing  such
  notice  to  the  mortgagees  at  the  address  set forth on the recorded
  instrument;
    (4) service may be made upon an occupant (i) by delivering such notice
  to the occupant or to a person employed by the occupant to work at or to
  manage or maintain the premises at which the  nuisance  is  located;  or
  (ii)  by  affixing  such notice to the premises at which the nuisance is
  located in a conspicuous place or by placing a copy under  the  entrance
  door  of such premises and mailing a copy of such notice to the occupant
  at such premises; (iii) and in all instances  except  personal  delivery
  upon  such occupant, by mailing the notice of hearing to the occupant at
  the premises at which the nuisance is located.


    (5) proof of service pursuant to paragraphs (1), (2), (3), and (4)  of
  this subdivision shall be filed with the commissioner.
    d.  Such  hearing  shall  be conducted by the office of administrative
  trials and hearings. The administrative law judge assigned to  hear  the
  matter shall submit his or her proposed findings of fact and recommended
  decision  to  the  commissioner.  If based on such recommended decision,
  proposed  findings  of  fact,  and  the  record  of  the   hearing   the
  commissioner  determines that the building or part thereof is located in
  a residential district and that it has been occupied for a commercial or
  manufacturing use in violation of the zoning resolution without a  valid
  certificate  of occupancy, he or she may issue an order of closure. Such
  order shall not bar legally required ingress or egress  for  residential
  occupancy  of  parts of the building, which are not subject to the order
  of closure.
    e. At such hearing it shall not be a defense that an owner,  occupant,
  lessor,  lessee,  mortgagee,  or  other person having an interest in the
  property lacked knowledge of or did not acquiesce or participate in  the
  commercial or manufacturing use of such property.
    f.  A  closure  ordered  by  the commissioner pursuant to this section
  shall not constitute an act of possession, ownership, or control by  the
  city over the closed premises. g. An order of closure shall be posted at
  the  building  or  part thereof, which is the subject of such order, and
  shall be mailed to the record owner of such  premises,  and  any  record
  mortgagee  at  the  address  for  such  person set forth in the recorded
  instrument, and to the person  designated  as  owner  or  agent  of  the
  building  or  designated to receive real property tax or water bills for
  the building at the address for such person  contained  in  one  of  the
  files  compiled  by  the  department  of  finance for the purpose of the
  assessment or collection of real property taxes and water charges or  in
  the  file  compiled  by  the  department  of  finance from real property
  transfer forms filed with the city register upon the sale or transfer of
  real property. A copy shall also be  filed  with  the  county  clerk  or
  register  of  the county in which such premises are located. Such filing
  shall be notice of the order to any  subsequent  owner  and  such  owner
  shall be subject to such order.
    h.  On the tenth business day after the posting of such order and upon
  the  written  directive  of  the  commissioner,  police   officers   and
  authorized  employees  of the department shall act upon and enforce such
  order by sealing, padlocking, or  otherwise  preventing  access  to  the
  premises  in  a  manner  that  will  not bar legally required ingress or
  egress for residential occupancy of parts of the building that  are  not
  subject to the closure order.
    i.  If  at  any  time  after  the  issuance  of such order, the owner,
  mortgagee, or other person having an interest in the  property  provides
  assurance,  in  a  form  satisfactory  to  the  commissioner,  that  the
  commercial or manufacturing use of the premises  has  been  discontinued
  and  will  not  reoccur,  or  such  owner,  mortgagee,  or  other person
  establishes  that  the  premises  may  be  lawfully  occupied  for  such
  manufacturing  or  commercial  use,  the  commissioner shall rescind the
  closure order. If such order is rescinded, the commissioner shall,  upon
  request  of  such  owner,  mortgagee, or other person, provide a copy of
  such recission, which may be filed with the county clerk or register  of
  the county in which such premises are located.
    j.  It  shall  be  a misdemeanor for any person to use or occupy or to
  permit any other person to use or occupy any building  or  part  thereof
  that  has  been  sealed,  padlocked,  or otherwise closed pursuant to an
  order of the commissioner. Mutilation or removal of a  posted  order  of
  the  commissioner  shall  be  punishable  by a fine of not more than two


  hundred fifty dollars or by imprisonment not exceeding fifteen days,  or
  both, provided such order contains therein a notice of penalty.
    k. Intentional disobedience or resistance to any provision of an order
  issued  by the commissioner pursuant to this section, in addition to any
  other punishment prescribed by law, shall be punished by a fine  of  not
  more  than  one  thousand  dollars, or by imprisonment not exceeding six
  months, or both.