January 23, 2018
Via Electronic Mail
Troy City Council Members
433 River Street
Troy, NY 12180
Patrick Madden
433 River Street
Troy, NY 12180
Dear Troy City Council Members and Mayor Madden,
We are writing regarding Troy’s nuisance ordinance, known as “Nuisances: Mayor’s
Powers; Assignment of Points for Offenses” and found in Chapter 205, Article III of Troy’s
municipal code. Nuisance ordinances, such as this one, infringe on residents’ constitutional right
to petition the government because they punish calls for police assistance. Furthermore, such
ordinances harm domestic violence and other crime victims who may be punished under the
ordinance for crimes committed against them.
We wish to call your attention to a recent court case from the Appellate Division of the
Third Department where an ordinance that is very similar to the Troy nuisance ordinance was
struck down as unconstitutional. We believe that your nuisance ordinance is also unlawful and
we hope that this recent decision will prompt Troy to rescind its Nuisances ordinance. In this
letter we (1) explain why the Troy ordinance is unconstitutional under the First Amendment,
under the recent Third Department decision; (2) discuss how the Troy ordinance also may run
afoul of the Constitution’s Equal Protection and Due Process clauses, as well as the Fair Housing
Act; and (3) set forth a request for limited records related to the ordinance pursuant to New York
State Freedom of Information Law, N.Y. Pub. Off. Law § 84 et seq.
The Troy “Nuisances: Mayor’s Powers; Assignment of Points for Offenses” Ordinance is
Unconstitutional
In a June 2017 decision, Village of Groton v. Pirro, the Third Judicial Department’s
Appellate Division struck down the Village of Groton’s Nuisance Law as unconstitutional.1 The
Nuisance Law penalized properties for criminal activity, even when tenants reported the criminal
activity or were the victims of it.
The First Amendment protects the right to petition the government for redress of
grievances, including the right to make criminal complaints to the police. The court in Village of
Groton found that the Nuisance Law was unconstitutional under the First Amendment because it
1

Bd. of Trustees of Vill. of Groton v. Pirro, 152 A.D.3d 149 (3d Dep’t 2017).

 “deters tenants from seeking assistance from police by placing them at risk of losing their
homes.”2 The court struck down the entire law on its face because it would chill people,
including domestic violence victims, from reaching out for police assistance. It noted that “the
unconstitutional aspects of the law are so interwoven in its provisions that severance would be
impractical,” concluding that the entire law was invalid under the First Amendment.3 The ruling
did not depend on the way that Groton had actually enforced the ordinance.
Troy’s ordinance, like the law struck down in Village of Groton, violates the First
Amendment’s protection of the right to petition the government because it authorizes the
imposition of penalties based on criminal activity or other offenses, which generally come to the
attention of Troy through 911 calls and police reports. Like the unconstitutional Village of
Groton ordinance, the Troy ordinance contains the following provisions:


The Troy ordinance punishes landlords and tenants for a wide range of behaviors
– criminal and noncriminal behaviors – that any person engages in on a property.
The ordinance assigns points to a broad list of conduct, from gambling offenses to
violation of the city’s recycling ordinance.4 This is similar to the unconstitutional
Village of Groton law, under which points accumulated toward a public nuisance
determination based on a comprehensive list of criminal and non-criminal
incidents, ranging from “[s]uffering or permitting the premises to become
disorderly” to assault.5



The Troy ordinance does not require convictions in order for the ordinance to be
triggered. Instead, like the invalid Groton nuisance ordinance, violations that
accrue points merely must be proven by a preponderance of the evidence.6



The Troy ordinance does not specify what kind of evidence may be used to prove
that violations have occurred.7 Thus, like the ordinance at issue in Village of
Groton, nothing in the law precludes the ordinance from being triggered for
“police involvement resulting from a tenant’s exercise of the right to petition the
government for redress by summoning police.”8



Like the Groton ordinance, the Troy ordinance makes no distinction between
crimes committed by tenants and crimes committed against tenants.9



Both the Troy ordinance and the invalidated Groton ordinance may cause tenants
to lose their homes. The Troy ordinance permits the mayor to order the closing of
a building determined to be a public nuisance or to suspend or revoke the

2

Id. at 156.
Id. at 161.
4
City of Troy, N.Y., Code § 205-19.
5
Vill. of Groton, 152 A.D.3d at 157. Troy’s ordinance also assigns points for “[s]uffering or permitting the premises
to become disorderly.” City of Troy, N.Y., Code § 205-19(D)(4).
6
Vill. of Groton, 152 A.D.3d at 157; City of Troy, N.Y., Code § 205-20.
7
City of Troy, N.Y., Code § 205-20.
8
Vill. of Groton, 152 A.D.3d at 157.
9
Id. at 158. See City of Troy, N.Y., Code § 205-25.
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 building’s certificate of use.10 The Groton ordinance permitted eviction of tenants
as a remedy that landlords could use when a property was designated a nuisance.11
Additionally, Troy’s ordinance raises concerns under the Fourteenth Amendment’s Equal
Protection Clause and Due Process Clause, and the Fair Housing Act. Under both the Fourteenth
Amendment’s Equal Protection Clause and the Fair Housing Act, laws may not discriminate on
the basis of sex. In September 2016, the Department of Housing and Urban Development issued
guidance making clear that nuisance ordinances that have an unjustified discriminatory effect on
victims of domestic violence violate the Fair Housing Act.12 This guidance explains that where
nuisance ordinances have a disparate impact cities face a “difficult burden” in justifying their use
and that repealing nuisance ordinances is “[o]ne step a local government may take toward
meeting its duty to affirmatively further fair housing.”13 Laws such as Troy’s that may punish
domestic violence victims, who are predominantly women, for seeking police assistance or for
being the victims of crime in their homes may unlawfully discriminate on the basis of sex.14
Laws such as Troy’s that permit displacement of tenants pursuant to a nuisance designation
without providing adequate procedural protections, may violate the Fourteenth Amendment’s
Due Process Clause.
Though these issues were not reached in the Village of Groton decision, similar claims
against comparable nuisance ordinances have led to settlements involving significant monetary
compensation. The American Civil Liberties Union (ACLU) filed and settled cases on behalf of
domestic violence victims in Borough of Norristown, PA for $495,000, and Surprise, AZ for
over $200,000, and both settlements also led to complete repeal of the laws, with an agreement
not to adopt similar provisions in the future.15
Recent lawsuits also have resulted in agreements or court orders to stop enforcement of
laws similar to your nuisance ordinance that threaten to displace tenants. In July 2017, tenants
with criminal records in transitional supportive housing represented by the ACLU obtained a
preliminary injunction from a federal court against a Residential Rental Property Ordinance in
Hesperia, California. The Hesperia ordinance, like the ordinance in Troy, allowed the city to take
actions that could result in tenants losing their homes based on supposed criminal activity on the
property without adequate due process.16 In 2016, Wilkes-Barre, Pennsylvania agreed to stop
enforcing an ordinance that allowed city officials to evict tenants and prevent landlords from
10

City of Troy, N.Y., Code § 205-21.
Vill. of Groton, 152 A.D.3d at 158.
12
Department of Housing and Urban Development, Guidance on Application of Fair Housing Act Standards to the
Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence, Other
Crime Victims, and Others Who Require Police or Emergency Services (Sept. 13, 2016),
https://portal.hud.gov/hudportal/documents/huddoc?id=FinalNuisanceOrdGdnce.pdf.
13
Id. at 9, 12.
14
See, e.g., City of Troy, N.Y., Code §§ 205-19(A)(1), 205-19(D)(2).
15
ACLU Women’s Rights Project, Recent Settlements and the Implications of Local Nuisance Ordinances for
Municipal Governments,
http://www.imla.org/images/links/webinar/Bulletin%20for%20municipalities%20on%20Briggs%20settlement%20a
nd%20nuisance%20ordinances.pdf; ACLU, Nancy Markham v. City of Surprise, https://www.aclu.org/cases/nancymarkham-v-city-surprise.
16
ACLU of Southern California, Victor Valley Family Resource Center v. City of Hesperia,
https://www.aclusocal.org/en/cases/victor-valley-family-resource-center-v-city-hesperia.
11

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 renting properties if anyone was suspected of illegal activity involving drugs or guns on the
premises, after the ACLU filed a lawsuit on behalf of tenants and landlords threatened with
eviction under the ordinance.17
Cities in New York also have settled constitutional and Fair Housing Act challenges
against their nuisance ordinances. In 2010, a lawsuit brought by domestic violence survivors
against East Rochester, New York was settled for monetary damages and resulted in the
municipality agreeing to amend its ordinance.18 Hornell, New York also settled a challenge
brought against its nuisance ordinance by a domestic violence survivor, amending its law in
2011.19
Given the controlling Village of Groton decision, the Troy Public Nuisance Abatement
ordinance is clearly unconstitutional. We therefore ask that Troy rescind this ordinance.
Freedom of Information Law Request Regarding Troy’s “Nuisances: Mayor’s Powers;
Assignment of Points for Offenses” Ordinance
In addition, we request records regarding the ordinance entitled “Nuisances: Mayor’s
Powers; Assignment of Points for Offenses” and found in Chapter 205, Article III of Troy’s
Municipal Code. Below we have detailed the information we seek for inspection or production in
accordance with the New York State Freedom of Information Law, N.Y. Pub. Off. Law § 84 et
seq.
If possible, please provide the requested records in electronic format. If requested records
are maintained in a computer database, please contact us before retrieving the records so that we
can ensure that the retrieved records are in a usable and readable format. We agree to
compensate you for the cost of duplicating the records we request, as provided by law. Upon
locating the requested documents, please contact us prior to photocopying and advise us of the
actual cost of duplication.
The New York State Freedom of Information Law requires a response within five
business days of the receipt of a written request for records. If access to the records we are
requesting will take longer than five days, please contact us with information about when we
might expect copies or the ability to inspect the requested records.
We seek the following records in possession of the City of Troy:
From November 1, 2012 to the present, copies of all warnings, notices, orders,
penalties, fines, or other communications issued pursuant to the Nuisances: Mayor’s

17

ACLU of Pennsylvania, Peters v. Wilkes-Barre, https://www.aclupa.org/our-work/legal/legaldocket/peters-vwilkes-barre/.
18
Brian Sharp, City to fix law that snared victims, Democrat & Chronicle, Nov. 1, 2015,
http://www.democratandchronicle.com/story/news/2015/11/02/city-fix-law-snared-victims/74879710/.
19
Stipulation of Settlement and Discontinuation, Peeso v. City of Hornell, No. 6:11-cv-06306 (W.D.N.Y. filed Nov.
14, 2011).

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 Powers; Assignment of Points for Offenses ordinance by any city official or
employee.
Please furnish records to:
Scout Katovich
Legal Fellow
New York Civil Liberties Union
125 Broad Street, 19th Floor
New York, NY 10004
If for any reason any portion of this request is denied, please inform us of the reasons for
the denial in writing and provide the name and address of the person or body to whom an appeal
should be directed.
Please contact Scout Katovich by February 9, 2018, to advise us of whether you plan to
rescind your nuisance ordinance. We welcome the opportunity to discuss this matter further with
you. Thank you for your consideration.

Sincerely,
Scout Katovich
Legal Fellow
New York Civil Liberties Union
Melanie Trimble
Capital Region Chapter Director
New York Civil Liberties Union
41 State St., Suite 612, Albany, NY 12207
Sandra Park
Senior Staff Attorney
ACLU Women's Rights Project
Amy Schwartz-Wallace
Senior Staff Attorney
Empire Justice Center
Connie Neal
Executive Director
New York State Coalition Against Domestic
Violence

Cc: Troy City Attorney
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