Substitute House Bill No. 5073
Substitute House Bill No. 5073
PUBLIC ACT NO. 98-220
AN ACT CONCERNING NUISANCE ABATEMENT AND QUALITY
OF LIFE.
Be it enacted by the Senate and House of
Representatives in General Assembly convened:
Section 1. (NEW) (a) For the purposes of this
act, a person creates or maintains a public
nuisance if such person erects, establishes,
maintains, uses, owns or leases any real property
or portion thereof for any of the purposes
enumerated in subdivisions (1) to (7), inclusive,
of subsection (c) of this section.
(b) The state has the exclusive right to bring
an action to abate a public nuisance involving any
real property or portion thereof, commercial or
residential, including single or multifamily
dwellings, provided there have been three or more
arrests for conduct on the property documented by
a law enforcement officer of any for the offenses
enumerated in subdivisions (1) to (7), inclusive,
of subsection (c) of this section within the three
hundred sixty-five days preceding commencement of
the action.
(c) Three or more arrests for the following
offenses shall constitute the basis for bringing
an action to abate a public nuisance:
(1) Prostitution under section 53a-82, 53a-83,
53a-86, 53a-87, 53a-88 or 53a-89 of the general
statutes.
(2) Promoting an obscene performance or
obscene material under section 53a-196 or 53a-196b
of the general statutes, employing a minor in an
obscene performance under section 53a-196a of the
general statutes, or importing or possessing child
pornography under section 53a-196c or 53a-196d of
the general statutes.
(3) Transmission of gambling information under
section 53-278b or 53-278d of the general
statutes, or maintaining of a gambling premises
under section 53-278e of the general statutes.
(4) Offenses for the sale of controlled
substances, possession of controlled substances
with intent to sell, or maintaining a drug factory
under section 21a-277, 21a-278 or 21a-278a of the
general statutes, or use of the property by
persons possessing controlled substances under
section 21a-279 of the general statutes. Nothing
in this section shall prevent the state from also
proceeding against property under section 21a-259
or 54-36h of the general statutes.
(5) Unauthorized sale of alcoholic liquor
under section 30-74 of the general statutes, or
disposing of liquor without a permit under section
30-77 of the general statutes.
(6) Violations of the inciting injury to
persons or property law under section 53a-179a of
the general statutes.
(7) Maintaining a motor vehicle chop shop
under section 14-149a of the general statutes.
Sec. 2. (NEW) (a) The Chief State's Attorney
or a deputy chief state's attorney, state's
attorney or assistant or deputy assistant state's
attorney desiring to commence an action to abate a
public nuisance shall attach his proposed unsigned
writ, summons and complaint to the following
documents:
(1) An application directed to the Superior
Court to which the action is made returnable, for
the remedies requested to abate the public
nuisance; and
(2) An affidavit sworn to by the state or any
competent affiant setting forth a statement of
facts showing by probable cause the existence of a
public nuisance upon the real property or any
portion thereof.
(b) The court, or if the court is not in
session, any judge of the Superior Court, may
order that a show cause hearing be held before the
court or a judge thereof to determine whether or
not the temporary relief requested should be
granted and the court shall direct the state to
give notice to any defendant of the pendency of
the application and of the time when it will be
heard by causing a true and attested copy of the
application, the proposed unsigned writ, summons,
complaint, affidavit and of its order to be served
upon the defendant by some proper officer or
indifferent person. Such hearing shall be
scheduled within ten days after service is
effected by the state.
(c) If in the application, the state requests
the issuance of a temporary ex parte order for the
abatement of a public nuisance, the court, or if
the court is not in session, any judge of the
Superior Court, may grant a temporary ex parte
order to abate the public nuisance. The court or
judge shall direct the state to give notice and
service of such documents, including a copy of the
ex parte order, in accordance with subsection (b)
of this section. At such hearing, any defendant
may show cause why the abatement order shall be
modified or vacated. No such ex parte order may be
granted unless it appears from the specific facts
shown by affidavit and by verified complaint that
there is probable cause to believe that a public
nuisance exists and the temporary relief requested
is necessary to protect the public health, welfare
or safety. Such show cause hearing shall be
scheduled within five business days after service
is effected by the state. The affidavit may be
ordered sealed by the court or judge upon a
finding that the state's interest in nondisclosure
substantially outweighs the defendant's right to
disclosure. A copy of the state's application and
the temporary order to cease and desist shall be
posted on any outside door to any building on the
real property.
(d) Such a public nuisance proceeding shall be
deemed a civil action and venue shall lie in the
Superior Court for the judicial district within
which the real property alleged to constitute a
public nuisance is located. Service shall be made
in accordance with chapter 896 of the general
statutes. In addition, service of process may be
made by an inspector of the Division of Criminal
Justice or sworn member of a local police
department or the division of state police.
(e) At the show cause hearing, the court shall
determine whether there is probable cause to
believe that a public nuisance exists, and that
the circumstances demand the temporary relief
requested be ordered, or the temporary ex parte
order be continued during the pendency of the
public nuisance proceeding. The court may, upon
motion by the state or any defendant, enter such
orders as justice requires. The court shall
schedule the evidentiary hearing within ninety
days from the show cause hearing.
(f) The record owner of the real property, any
person claiming an interest of record pursuant to
a bona fide mortgage, assignment of lease or rent,
lien or security in the property and any lessee or
tenant whose conduct is alleged to have
contributed to the public nuisance shall be made a
defendant to the action, except that the state
shall exempt as a defendant any owner, lienholder,
assignee, lessee, tenant or resident who
cooperates with the state in making bona fide
efforts to abate the nuisance or any tenant or
resident who has been factually uninvolved in the
conduct contributing to such public nuisance. If
the state exempts as a defendant any record owner
or any person claiming an interest of record
pursuant to a mortgage, assignment of lease or
rent, lien or security in the property, notice of
the commencement of a nuisance proceeding shall be
given by certified mail, return receipt requested,
with a copy of such summons and complaint and a
notice of exemption and right to be added as a
party to any such person at his usual place of
abode or business. Any such exempted person may,
at his option, enter an appearance and participate
in the nuisance proceeding to protect his property
rights. Notice of the commencement of such a
public nuisance proceeding shall be given by
certified mail to the highest elected official of
the municipality in which the real property is
located.
(g) If the defendant is a financial
institution and the record owner of the real
property, or if the defendant is a financial
institution claiming an interest of record
pursuant to a bona fide mortgage, assignment of
lease or rent, lien or security in the real
property and is not determined to be a principal
or an accomplice in the conduct constituting the
public nuisance, the court shall not enter any
order against such defendant. The state shall have
the burden of proving by clear and convincing
evidence that any such defendant claiming an
interest of record under this subsection is a
principal or an accomplice in the alleged conduct
constituting the public nuisance. For the purposes
of this subsection, "financial institution" means
a bank as defined in subdivision (4) of section
36a-2 of the general statutes, as amended by
section 1 of public act 97-223, an out-of-state
bank, as defined in subdivision (41) of section
36a-2 of the general statutes, as amended by
section 1 of public act 97-223, institutional
lender or any subsidiary or affiliate of such
bank, out-of-state bank or institutional lender
who directly or indirectly acquires the real
property pursuant to strict foreclosure,
foreclosure by sale or deed-in-lieu of
foreclosure, and with the intent of ultimately
transferring the property, or other lender
licensed by the Department of Banking.
(h) For any defendant who fails to appear, the
court may enter a default following an evidentiary
showing by the state in support of the relief
requested, which shall include affidavits or the
testimony of witnesses. When the court enters a
judgment upon default, the court may enter such
orders as appear reasonably necessary to abate the
public nuisance.
(i) At the evidentiary hearing upon the public
nuisance complaint, the state shall have the
burden of proving by clear and convincing evidence
of the existence of a public nuisance upon the
real property as defined in section 1 of this act.
If the state presents clear and convincing
evidence that there have been three or more
arrests for conduct on the real property or any
portion thereof documented by a law enforcement
officer for any of the offenses enumerated in
subdivisions (1) to (7), inclusive, of subsection
(c) of section 1 of this act, within the three
hundred sixty-five days preceding commencement of
the action, this shall create a rebuttable
presumption of the existence of a public nuisance.
Any defendant may offer evidence by way of an
affirmative defense that he has taken reasonable
steps to abate the public nuisance, but has been
unable to abate the nuisance.
Sec. 3. (NEW) In any proceeding to abate a
public nuisance, the state may request such
remedies or relief as are reasonably necessary to
abate the nuisance including, but not limited to,
orders for repair or alteration to the real
property or any portion thereof, temporary orders
to cease and desist, orders to cease and desist or
appointment of a receiver of rents. In any such
action, the court may enter any orders necessary
and proper to abate the nuisance.
Sec. 4. (NEW) Any person who intentionally
violates a temporary order issued pursuant to this
act may be fined not more than one hundred dollars
or imprisoned not more than six months, or both,
in addition to any other remedy provided by law.
Sec. 5. (NEW) (a) The court may, upon
application of the state, appoint a receiver to
operate and manage the property or any portion
thereof in accordance with the provisions of this
section during the pendency of the public nuisance
proceeding and shall include such powers and
duties as the court may direct.
(b) The receiver shall with all reasonable
speed, remove the delinquent matters and
deficiencies in the property or any portion
thereof constituting a serious fire hazard or a
serious threat to life, health or safety. During
the term of the receivership, the receiver shall
repair and maintain the property or any portion
thereof in a safe and healthful condition. The
receiver shall have the power to let contracts
therefor in accordance with the provisions of
local laws, ordinances, rules and regulations.
Notwithstanding any such laws, ordinances, rules
or regulations, the receiver may let contracts or
incur expenses for individual items of repairs,
improvements or supplies without advertisement or
the procurement of competitive bids where the
total amount of any such individual item does not
exceed five hundred dollars or where there exists
a condition which constitutes an imminent and
substantial danger to life, health or safety, but
in such event the receiver shall endeavor to
obtain contracts on the most advantageous terms.
(c) The receiver shall collect the accrued and
accruing rents, issues and profits of the property
or any portion thereof and apply the same to the
cost of removing or remedying such nuisance, to
the payment of expenses reasonably necessary to
the proper operation and management of the
property, including insurance and the fees of the
managing agent, if any, and to unpaid taxes,
assessments, water rents and sewer rents and
penalties and interest thereon.
(d) Any excess of income of the property in
the hands of the receiver shall be applied to the
necessary expenses in regard to such property of
his office as receiver and then to sums due to
mortgagees or lienors.
(e) The receiver shall have the power to bring
a summary process action pursuant to the
provisions of chapter 832 of the general statutes,
against any tenant or occupant of the property.
(f) Following appointment, the receiver shall
keep complete written records, including records
of all receivership funds on deposit and records
itemizing all receipts and expenditures.
(g) The receiver's accounts shall be open to
inspection by any defendant having an ownership
interest in the real property, the state, the
court or any defendant with a record interest in
the leases or rents.
(h) Upon motion by any defendant having an
interest in the real property or the state, or
upon its own motion, the court may direct the
receiver to render a periodic accounting to the
court.
(i) A receiver shall act until removed by the
court. Upon the termination of the receivership,
the receiver shall render to the court a final
accounting of all funds pertaining to the real
property on deposit, as well as records of
receipts and expenditures. The receiver shall
deliver ledgers, records and the receiver's files
and notes pertaining to any litigation or claim
arising out of management of the real property to
any person designated by the court.
(j) A receiver appointed pursuant to this
section shall not be liable in his capacity as
receiver to any person except for intentional or
wilful misconduct.
Sec. 6. (NEW) (a) If the court finds by clear
and convincing evidence that a public nuisance
exists, the court may enter such orders as justice
requires to abate the public nuisance, including
but not limited to, an order to close the real
property or any portion thereof. The court shall
retain jurisdiction over the case until it appears
that the nuisance no longer exists. The state
shall post a copy of any court order to close the
real property or any portion thereof on any
outside door of the premises. The order shall
include a notice that any person who removes,
mutilates or defaces the closing order may be
punished, upon conviction, by a fine not to exceed
two hundred fifty dollars or by imprisonment of
fifteen days, or both.
(b) At any time after entry of an order, any
defendant may apply to the court to have any order
vacated or modified for good cause. Prior to any
decision on a defendant's application to vacate or
modify an order, the state shall be afforded a
reasonable opportunity to inspect the real
property or any portion thereof to verify that the
public nuisance has been abated, and the court
shall provide the state with an opportunity to be
heard to contest the defendant's application.
(c) Where the court vacates or modifies any
order, it may condition its decision on the
posting of a bond in an amount not to exceed the
current fair market value of the real property, as
stated in an independent appraisal by a certified
real estate appraiser, as surety against
recurrence of the public nuisance.
(d) Where the court finds that real property
or any portion thereof constitutes a public
nuisance and enters a final judgment, the state
shall record a copy of such judgment and any
orders on the land records in the town in which
such real property is located. At any time after
the entry of judgment, any defendant may apply to
the court to modify or vacate any order, including
the reduction of the amount of, or release of
liability for any bond required pursuant to
section 6 of this act. The court may grant such
application for good cause shown, which may
include, but not be limited to, a showing by such
defendant by clear and convincing evidence that:
(1) All court orders have been complied with, that
any named persons have ceased any conduct
constituting a public nuisance upon the real
property or any portion thereof and that the
nuisance has abated; (2) the defendant wishes to
refinance or sell the real property to an
identified bona fide purchaser for value whose
proposed use for the real property will not
constitute a public nuisance; or (3) the defendant
has demolished or razed any buildings, structures
or features upon the real property capable of
supporting a public nuisance. Prior to any
decision on a defendant's application to vacate or
modify a final order or release a lien, the state
shall be afforded a reasonable opportunity to
inspect the real property or any portion thereof.
Any modification to any order shall be recorded on
the land records in the town in which such real
property is located.
(e) Where the state applies for an order to
close the real property or any portion thereof,
the court shall take into consideration the rights
of all interested parties and shall limit the
scope of a closing order to minimize dispossession
or dislocation of tenants or residents who have
been factually uninvolved in the conduct
contributing to the public nuisance, unless
continued occupation of the property is necessary
to protect public health, safety or welfare.
Sec. 7. (NEW) (a) In any case where
dispossession or dislocation of tenants or
residents who have been factually uninvolved with
the conduct contributing to such public nuisance
is necessary to abate the public nuisance, the
court may impose the reasonable costs of
relocating such tenants or residents upon any
defendant determined by the court to be liable for
the public nuisance.
(b) In any public nuisance proceeding, the
court may impose the reasonable costs of
investigation, prosecution and any extraordinary
expenses incurred in abating the public nuisance
upon any defendant determined by the court to be
liable for the public nuisance. In any public
nuisance proceeding, the court may award to the
state or any municipality the reasonable costs of
investigation, prosecution and any extraordinary
expenses incurred in abating the public nuisance.
The state or municipality shall submit an
affidavit and such other documents as the court
directs in support of a request for award of
costs.
(c) The court may authorize the state or its
agents to make any repairs or alterations to the
real property or any portion thereof to bring it
into compliance with applicable state and local
building, fire, health, housing or similar codes.
The court may impose the actual costs of any
repairs or alterations upon any defendant
determined by the court to be liable for the
public nuisance. The court shall award the state
the actual costs of any such repairs or
alterations.
(d) In any public nuisance proceeding, any
monetary penalty imposed by the court on a
defendant with an ownership interest in the real
property and any award of costs to the state shall
constitute a judgment lien on the real property,
and shall be recorded as such on the land records
in the town where the property is located. In
addition, the state may, at its election, pursue
any remedy under chapter 906 of the general
statutes.
(e) If any defendant in a public nuisance
proceeding subject to a court order to abate the
nuisance intentionally violates any such court
order entered in judgment in a public nuisance
proceeding under this act, the court may impose a
civil penalty of not more than one thousand
dollars for each day the public nuisance is found
to have existed after such order. Upon recovery,
such penalty shall be deposited in the General
Fund.
(f) Any person who was not a defendant in a
public nuisance action who intentionally violates
any court order entered in judgment in a public
nuisance proceeding, may be fined not more than
one hundred dollars or imprisoned not more than
six months or both.
Sec. 8. (NEW) (a) The state may use an
inspector of the Division of Criminal Justice or a
state or municipal police officer to assist in the
enforcement of any court order in a public
nuisance proceeding. Where a municipal police
officer acts at the direction of a prosecutor, the
state shall first obtain the permission of the
municipal chief of police. Where a municipal
police officer acts at the direction of a
prosecutor or pursuant to a court order in a
public nuisance matter, the officer and the
municipality shall be indemnified against any
losses, damages or liabilities arising within the
scope of such duties, and the police officer shall
be deemed an employee of the state for purposes of
indemnification.
(b) In any public nuisance proceeding, an
order by the court closing the real property or
any portion thereof shall not be deemed to pass
dominion, title, possession or control over the
real property to the state.
Sec. 9. (NEW) Availability to the state of
other remedies at law or equity shall not prevent
the granting of relief under this act.
Sec. 10. This act shall take effect July 1,
1998.
Approved June 4, 1998