§ 22-121 Maintenance of a drift- and debris-free harbor.
AC § 22-121
a. As used in this section the following terms shall have the following meanings: 1. "Debris" means any substance or material, whether on land or water, which is capable of becoming drift.
2."Drift" means any substance or material, floatable or otherwise, which may cause damage to any vessel or craft or which may otherwise obstruct, impede or endanger the navigable capacity of the navigable waters of the city or cause any other condition hazardous to the life or safety of persons using such waters, including but not limited to piles, lumber, timber, driftwood, dirt, ashes, cinders, mud, sand, dredged materials, or refuse of any kind.
3."Navigable waters" means the waterways which are capable of carrying commerce, and the tributaries thereto, within the geographical limits of the city.
4."Owner" means a person having title to any premises or structure; a tenant, lessee or occupant; a mortgagee or vendee in possession; a trustee in bankruptcy; a receiver or any other person having legal ownership or control of any premises or structure.
5."Premises" means any land or land under water and improvements or appurtenances or any part thereof including but not limited to any structure.
6."Structure" means anything built or constructed including but not limited to a building, wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, derelict vessel, ship, barge, raft or floating craft of any kind. b. Whenever the commissioner determines that material of any kind placed or deposited on any premises located on or along the shores or banks of any navigable water may be or become a source of drift or debris liable to be washed into such navigable water by any cause whatsoever or that because of the deteriorated or deteriorating condition of any premises or structure located on or along the banks or shores of any navigable water such premises or structure may be or become a source of drift or debris liable to be washed into such water by any cause whatsoever and thereby cause damage to vessels or craft or otherwise obstruct, impede or endanger the navigable capacity of such water or cause any other condition hazardous to the life or safety of persons using such water, the commissioner may declare the same to be a public nuisance and order the owner of such premises or structure to remove, repair, reconstruct, alter or abate it as such order shall specify. It shall be the duty of an owner upon whom such an order has been served to remove, repair, reconstruct, alter or abate such public nuisance in the manner and in the time provided by such order. c.
1.An order of the commissioner issued pursuant to subdivision b of this section shall specify the work to be performed and shall fix a reasonable time for compliance but not less than thirty days from the date of service of such order. Such order shall contain a statement that upon the failure of the owner to comply with the commissioner's order within the stated time, the department may perform the work specified in the order or apply for a court order directing the owner to comply with the commissioner's order or directing the department to perform the work specified in the commissioner's order. Such statement shall also indicate that if the department performs any of the work specified in the commissioner's order, the expense incurred by the department in performing such work shall be a debt recoverable from the owner and a lien on the premises with respect to which such order was issued.
7.
(1)In any proceedings to enforce or discharge the lien, the validity of the lien shall not be subject to challenge based on (i) the lawfulness of the work done; or (ii) the propriety and accuracy of the items of expenses for which a lien is claimed, except as provided in this paragraph.
(2)No such challenge may be made except by (a) the owner of the property, or (b) a mortgagee or lienor whose mortgage or lien would but for the provisions of this section have priority over the department's lien.
(3)An issue specified in subparagraph one which was decided or could have been contested in a prior court proceeding to secure a court order pursuant to subdivision e of this section shall not be open to reexamination, but if any mortgagee or lienor of record was not served with an order of the commissioner pursuant to paragraph two of subdivision c and with notice of such proceeding, his or her mortgage or lien shall have the same priority over the lien of the department that it would have had but for the provisions of this section.
8.In addition to establishing a lien, the department may recover such expenses and interest by bringing an action against the owner. The institution of such action shall not suspend or bar the right to pursue any other remedy provided by law for the recovery of such debt.
