Hon. Everett J. Johns Town Attorney Town of Clarkstown

You have asked whether the building inspector and the fire inspector of the Town of Clarkstown have the authority to issue orders to remove buildings which they deem to be unsafe and hazardous to the general public.

Section 130 (16) of the Town Law authorizes towns to enact ordinances or regulations which provide for the removal or repair of buildings that are dangerous or unsafe to the public. Such ordinances must provide for: (1) inspection and report by a duly appointed official; (2) proper notice to the owner or other interested persons; (3) sufficient time to comply with the order; (4) filing of the order in the office of the County Clerk; and (5) a hearing before the Town Board.

The Town of Clarkstown has adopted a local law that provides for the removal or repair of unsafe buildings. See Clarkstown Code §§ 31-1, etseq. (1979). The town has the power to adopt a local law where it has the power to act by ordinance, resolution, rule or regulation (Municipal Home Rule Law § 10 [2]). A town building inspector is responsible for enforcing ordinances that provide for the removal or repair of unsafe buildings (Town Law § 138). The Clarkstown Code gives the building inspector the authority to inspect unsafe buildings and to report his findings and recommendations to the Town Board (§ 31-3). In the event of an emergency, the building inspector may immediately repair or remove an unsafe building if the Town Board grants him authority by resolution (§ 31-10). The responsibility of the building inspector under the Clarkstown Code is consistent with his authority under Town Law §138. As long as due process requirements are met, a building inspector may issue an order to remove a building which he deems unsafe (see Town Law § 130 [16]; Tax v Town of Evans, 41 A.D.2d 232 [4th Dept, 1973]; 1979 Op Atty Gen 197.

You have also asked whether the fire inspector of the Town of Clarkstown may issue an order for the removal or repair of a building which is a fire hazard. Section 138 of the Town Law authorizes a town of the first class to appoint assistants to the building inspector. Clarkstown is a town of the first class. The Town of Clarkstown has appointed a fire inspector who serves under the immediate direction and control of the building inspector (Clarkstown Code, Fire Prevention, § 47-4). We are of the opinion that a fire inspector who serves under the direction and control of the building inspector is a duly appointed assistant within the meaning of section 138 of the Town Law. Since the fire inspector is a duly appointed assistant to the building inspector, he is also authorized to enforce an ordinance, code or local law providing for the removal or repair of buildings which are fire hazards. Therefore, as long as due process requirements are met, the fire inspector of the Town of Clarkstown may issue an order for the removal or repair of an unsafe building. (See Town Law § 130 [16]; Tax v Town of Evans, supra; 1979 Op Atty Gen 197, supra.

We conclude that both the building inspector and the fire inspector have the authority to issue orders to remove buildings which they deem unsafe and hazardous to the general public as long as due process requirements are met.