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HomeMy WebLinkAboutORD-2003-006 Amend Section VII (Legal Status Provision), Sub-section VII-E (Penalties for Violation)019 ORANGE COUNTY BOARD OF COMMISSIONERS O _ map 3 QD and PLANNING BOARD PUBLIC HEARING AGENDA ITEM ABSTRACT Meeting Date: February 24, 2003 Action Agenda Item No. (2, /. C, SUBJECT: Proposed Zoning Ordinance & Subdivision Regulations Text Amendments — Article 23: Violations, Penalties and Remedies (Zoning); Section VII: Legal Status Provisions. Sub - section VII -E: Penalties for Violation (Subdivision) DEPARTMENT: Planning and Inspections PUBLIC HEARING: (YIN) Yes ATTACHMENT(S): INFORMATION CONTACT: Proposed Ordinance Craig N. Benedict, Director ext. 2592 Tom King, Planner II ext. 2607 TELEPHONE NUMBERS: Hillsborough 732 -8181 Chapel Hill 968 -4501 Durham 688 -7331 Mebane 336 - 227 -2031 PURPOSE: To receive citizen comment on proposed Zoning Ordinance and Subdivision Regulations text amendments regarding enforcement and penalties of both Ordinances. BACKGROUND: Orange County's Zoning Ordinance and Subdivision Regulations both contain enforcement provisions, Article 23 and Section VII, respectively. Zoning Ordinance Under the current Zoning Ordinance, Planning Staff currently has four (4) methods (listed below) available for enforcement of the Ordinance. These methods may be used individually or in concert. The Ordinance does not provide detailed procedures with regard to general violation notification procedures. • Criminal Action — Offender guilty of Class 3 misdemeanor punishable by fine of no more than $500.00. • Civil Penalties — Offender subject to penalty of $100.00 after notice sent to offender and demand for civil penalty payment made by BOCC. Penalties accrue daily. • Injunction and Abatement — Zoning Officer may ask Court of competent jurisdiction to prevent violation from continuing. • Stop Work Order — Zoning Officer may post and issue Stop Work Order to compel offender to cease work and bring property into compliance. Present ordinance procedure mandates that the BOCC, by resolution, make demand for payment of civil penalties after notice of said civil penalties has been communicated to the offending party. The demand must be made before the Zoning Officer or the County Attorney GACurrent Planning Div\ Tking\Abstracts\ZOEnforcement .PH ©2© 2' may take any collection action. Staff has pursued civil penalties prior to instituting any of the other remedies listed above, with the exception of Stop Work Orders. This procedure is time consuming and, given the high number of violations that Staff receives through outside complaints, requires significantly more time being spent on paperwork than on actual field investigations and enforcement. The proposed changes in the Ordinance revise and streamline the enforcement procedures by defining, in greater detail how violations are to be noticed, cited and carried through the enforcement process. The civil penalty fine is increased from $100.00 to $500.00. The amendments also authorize the Planning Director /Zoning Officer to pursue the collection of unpaid civil penalties without BOCC intervention while, at the same time, maintaining BOCC oversight through the County Manager's Office. Subdivision Regulations The current Subdivision Regulations also provide four (4) enforcement mechanisms (listed below). Again, as in the Zoning Ordinance, there is very little guidance on notification of violations and the citation procedure. • Criminal Action — Offender guilty of a misdemeanor punishable by fine of no more than $50.00 or thirty- (30) days in jail. • Civil Penalties — Offender subject to fee of $50.00. County may collect in the nature of a debt if penalty not paid within ten (10) days after citing of violation. Penalties accrue daily. • Injunction and Abatement — Planning Director may ask Court of competent jurisdiction to prevent violation from continuing. • Judicial enforcement through equitable remedies by a Court of law. The proposed changes in the Regulations revise and streamline the enforcement procedures by defining in greater detail how violations are to be noticed, cited and carried through the enforcement process. The civil penalty fine is increased from $50.00 to $500.00. FINANCIAL IMPACT: No financial impact is anticipated with this action. RECOMMENDATION(S): Planning Staff Recommendation Planning Staff recommends approval of the proposed Ordinance. Administration Recommendation The Administration recommends that the proposed Ordinance be referred to the Planning Board for a recommendation to be returned to the BOCC no sooner than May 20, 2003. GACun-ent Planning Div\ Tking \Abstracts\ZOEnforcement.PH Public Hearing Ordinance 3 021 Text and Section Numbers /Headings = Proposed Language StrikethFeugh = Existing Language Deleted An Ordinance Amending the Zoning Ordinance and Subdivision Regulations of Orange County Be it ordained by the Board of Commissioners of the County of Orange, North Carolina, that the Zoning Ordinance and Subdivision Regulations are hereby amended as follows: Section 1. (pages 23 -1 through 23 -2) Amend Article 23 (Violations. Penalties and Remedies) of the Orange County, NC Zoning Ordinance to read as follows: ARTICLE 23. ENFORCEMENT VIOLATIONS, PENALTIES AND REMEDIES 23.1 Violations;, Violators 23.1.1 Violation It is unlawful and a violation of this Ordinance to establish, create, expand, occupy, or maintain any use, land development activity, or structure, including, but not limited to, signs and buildings, that violates or is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. Approvals and authorizations include, but are not limited to, Special Use Permits, Sign Permits, Building Permits, Certificates of Zoning Compliance, Certificates of Occupancy, Variances, development plans, site plans, landscaping plans, and conditions of such permits, variances, and plans. It is also a violation to engage in any construction, land development activity, or use without all approvals and authorizations required by this Ordinance. 23.1.2 Violators Violators include, but are not limited to, any person(s) who owns, leases, occupies, manages, or builds any structure or land development activity in violation of this Ordinance, and any person (s) who owns, leases, or occupies a use in violation of this Ordinance. A violation may be charged against more than one violator. For the purpose of Article 23 of the Orange County, NC Zoning Ordinance, the term "person" is defined to include but not be limited to any individual, group of individuals, or. any corporation, partnership, association, company, or business, trust, joint venture, or other legal entity. In addition, one or more of the following persons may be held responsible for a violation of this Ordinance, and be subject to the remedies and penalties provided in this Article: 1) An owner of the property on which the violation of this Ordinance occurs, any, tenant or occupant of that property who has control over, or responsibility for, its use or development, or any other person who participates in, assists, directs, creates, or maintains a situation that constitutes a violation of this Ordinance. 23.1.3 Responsibility The Zoning Officer shall enforce this Ordinance and the remedies authorized under this Article. The Zoning Officer shall have the authority to settle any violations that involve the payment of money to the governing body. GACurrent Planning Div\Tking\ZO &SR Enforcement Amendments\Public Hearing Ordinance 422 Public Hearing Ordinance 4 23.1.4 Zoning Officer For the purposes of this Article "Zoning Officer" shall mean the Director of the Orange County, NC Planning and Inspections Department and /or a sworn staff member(s) acting in the capacity of the Zoning Officer. 23.2 Enforcement Procedures 23.2.1 Inspections and Investigations: A program of inspections and investigations to determine compliance with the Zoning Ordinance and orders, plans, permits, certificates, and authorizations issued under the Zoning Ordinance, is hereby authorized. This program shall be conducted under the general authority of the Zoning Officer. On receiving complaints or other information suggesting a violation of this Ordinance, the Zoning Officer shall investigate the situation and determine whether a violation exists. 23.2.2 Initial Notice of Violation: On determining that a violation exists, the Zoning Officer shall give the responsible person(s) written notice of the violation, either in person, posting the notice at the property in violation, or by certified or registered mail, return receipt requested. When service is made by certified mail, a copy of the notice may also be sent by regular mail. Service shall be deemed sufficient if the notice by certified mail is unclaimed or refused, but the notice by regular mail is not returned by the post office within ten (10) days after mailing, provided that a notice of violation is posted in a conspicuous place on the premises affected. The notice shall describe the nature of the violation and its location, state the actions necessary to correct the violation, and invite the alleged violator to meet with the Zoning Officer to discuss the violation and how it may be corrected. The Zoning Officer may provide the alleged violator additional notices of violation. This notice is an administrative determination subject to appeal as provided in Article 2.3 of this Ordinance. 23.2.3 Final Notice of Violation; Correction Order: The Zoning Officer's final written notice of violation (which may be the initial notice) shall also order correction of the violation, specify a reasonable time period in which the violation must be corrected, state the remedies and penalties authorized in Article 23.3 the Zoning Officer may pursue if the violation is not corrected within the specified time limit, and state that the correction order may be appealed to the Board of Adjustment if the correction order is the initial notice. The final written notice of violation shall be served upon the responsible person(s), either in person, posting the notice at the property in violation, or by certified or registered mail, return receipt requested. When service is made by certified mail, a copy of the notice may also be sent by regular mail. Service shall be deemed sufficient if the notice by certified mail is unclaimed or refused, but the notice by regular mail is not returned by the post office within ten (10) days after mailing, provided that a final notice of violation is posted in a conspicuous place on the premises affected. G\Current Planning Div\Tking\ZO &SR Enforcement Amendments \Public Hearing Ordinance Public Hearing Ordinance 5 023 A notice of violation is not required where a notice of the same violation has been issued to the same violator at the same property within the previous two (2) years. In such cases, the violator may be charged with a continuing violation without further notice, as provided in Section 23.4.5 below. A notice is also not required where action is taken under Sections 23.3.1 a), b) or f). 23.2.4 Appeal to Board of Adjustment: Any person aggrieved by the Zoning Officer's determination of a violation or a correction order may appeal that determination or order to the Board of Adjustment in accord with the provisions of Article 2.3 of this Ordinance, including payment of the appropriate fee. Except as provided in that Article, an appeal generally stays all further actions to enforce a notice of violation, correction order, or Stop Work Order, until the Board of Adjustment has decided the appeal. Civil Penalty Citations that follow the initial notice of violation may not be appealed to the Board of Adjustment. The Board shall hear the appeal and may affirm, modify, or revoke the determination of a violation. If there is no appeal, the Zoning Officer's determination of the nature and degree of the violation are final. 23.2.5 Failure to Comply with Notice or Board of Adjustment Decision: If the violator does not comply with a notice of violation, correction order, or Stop Work Order, which has not been appealed, or with a final decision of the Board of Adjustment, the violator shall be subject to enforcement action as prescribed by State law or by this Ordinance. 23.2.6 Extension of Time Limit to Correct Violation: The recipient of a notice of violation, correction order, or Stop Work Order, or the owner of the property on which the violation occurs, may submit to the Zoning Officer a written request for extension of the notice or order's specified time limit for correction of the violation. On determining that the request includes enough information to show that the violation cannot be corrected within the specified time limit for reasons beyond the control of the person requesting the extension, the Zoning Officer may extend the time limit as reasonably necessary to allow timely correction of the violation. 23.2.7 Enforcement Action After Time Limit to Correct Violation: Following the time limit for correction of the violation, including any stay or extension thereof, the Zoning Officer shall determine whether the violation has been corrected. If the violation has been corrected, the Zoning Officer shall take no further action against the alleged violator. If the violation has not been corrected, the Zoning Officer may act to impose one or more of the remedies and penalties specified in the notice of violation, correction order, or Stop Work Order. 23.2.8 Emergency Enforcement Without Notice: If delay in correcting a violation would seriously threaten the effective enforcement of this Ordinance or pose a danger to the public health, safety, or welfare, the Zoning Officer may seek immediate enforcement without prior written notice through any of the remedies or penalties authorized in Article 23.3. GACurrent Planning Div\Tking\ZO &SR Enforcement Amendments \Public Hearing Ordinance 024 Public Hearing Ordinance 6 23.3 Remedies: Penalties, Enforcement_ Action 23.3.1 General The Zoning Officer may pursue one (1) or more of the following remedies and penalties described below or in Article 23.4, or otherwise authorized by common law or statute, to prevent, correct, or abate a violation of this Ordinance. Such statutes include, but are not limited to, NCGS Chapter 153A, Sections 123, 324, and 361 et. seq. Use of one (1) of the authorized remedies and penalties does not preclude the Zoning Officer from using any other authorized remedies or penalties, nor does it relieve any party to the imposition of one (1) remedy or penalty from imposition of any other authorized remedies or penalties. a) Permit Revocation: In accord with the provisions of this Ordinance and the provisions of Chapter 6 (Buildings and Building Regulations) of the Orange County, NC Code, the Zoning Officer or Code Enforcement Officer, upon a written determination by the Zoning Officer or Code Enforcement Officer, may revoke any permit, certificate, or other authorization granted under this Ordinance or under Chapter 6 of the Orange County, NC Code for failure to comply with the provisions of this Ordinance or the terms and conditions of a permit or authorization granted under this Ordinance. Any permit, certificate, or authorization mistakenly issued in violation of State law or local ordinance, or issued on the basis of misrepresentations by the applicant, owner, or owner's agent may be revoked without such written determination. b) Permit Denial or Conditioning: As long as a violation of this Ordinance remains uncorrected, the Zoning Officer may deny or withhold approval of any permit, certificate, or other authorization provided for in this Ordinance that is sought for the property on which the violation occurs. The Zoning Officer may also condition a permit, certificate, or authorization on the correction of the violation and /or payment of a civil penalty, and /or posting of a compliance security. C) Injunctive and Abatement Relief in Superior Court: A violation may be corrected by any appropriate equitable remedy, a mandatory or prohibitory injunction, or an order of abatement as authorized by NCGS 153A- 123: The Zoning Officer shall have the authority to execute an order of abatement if the violator does not comply with such order, and the costs of the execution shall be a lien on the property in the nature of a mechanic's or materialman's lien. d) Criminal Penalties: Any person, firm or corporation who violates the provisions of this Ordinance or fails to comply with any of its requirements shall, upon conviction, be guilty of a misdemeanor and shall be fined not more than a maximum of five hundred dollars ($500.00), imprisonment of up to thirty (30) days, or both, for each violation, as provided in NCGS Section 14-4. The Zoning Officer may refer a violation to the County Attorney for institution of criminal prosecution of the alleged violator. GACurrent Planning Div\Tking\ZO &SR Enforcement Amendments \Public Hearing Ordinance Public Hearing Ordinance 7 e) Judicial Action to Collect Civil Penalty: A civil action in the nature of a debt may be filed in any court of competent jurisdiction to collect an unpaid civil penalty imposed under Article 23.4 below. f) Stop Work Order: When a violation pertains to construction or alteration of a structure, a Stop Work Order may be issued in accordance with NCGS 153A -361 or the North Carolina State Building Code including any supplemental amendments thereto. All zoning requirements pertaining to the location and siting of structures are considered local building laws for application of NCGS 153A -361. Appeal of an order relating to a local building law shall initially be to the Director of Planning and Inspections or his /her designee who shall conduct a hearing within five (5) working days of the issuance of the order. Further, appeal may be made to the Board of Adjustment unless the Stop Work Order was issued after an initial notice of violation or correction order. 23.4 Civil Penalty 23.4.1 General The Zoning Officer may impose one or more civil penalties and issue one or more Civil Penalty Citations for a violation as provided below. If the violator does not pay the penalty, the Zoning Officer may collect it in a court through a civil action in the nature of a debt. 23.4.2 Notice The Zoning Officer shall give the responsible person(s) written notice of the violation, either in person, posting the notice at the property in violation, or by certified or registered mail, return receipt requested. When service is made by certified mail, a copy of the notice may also be sent by regular. mail. Service shall be deemed sufficient if the notice by certified mail is unclaimed or refused, but the notice by regular mail is not returned by the post office within ten (10) days after mailing, provided that a notice of violation is posted in a conspicuous place on the premises affected. The notice shall include a copy of the notice of violation, the amount of the penalty, information about where to pay the penalty, the deadline for payment, which shall be ten (10) days from-the date of the notice, and the possibility of civil and /or criminal enforcement. 23.4.3 Amount The Zoning Officer may impose a penalty of five hundred dollars ($500.00) per day of violation. For purposes of assessing the amount of a civil penalty, each day the violation remains uncorrected after receipt of the final notice of violation, correction order, (or the receipt of the Civil Penalty Citation itself in the case of emergency enforcement), or Stop Work Order, shall constitute a separate violation that subjects the violator to additional civil penalties. GACurrent Planning Div \Tking\ZO &SR Enforcement Amendments \Public Hearing Ordinance ono Public Hearing Ordinance 8, 23.4.4 Settlement of Claims The Zoning Officer is authorized to determine the amount of payment that will be accepted in full and final settlement of some or all of the claims the governing body may have in connection with the violation. The Zoning Officer shall indicate in writing the claims from which the violator is released. If the violation has not been remedied, payment shall not release a violator from potential criminal prosecution or a claim for injunctive relief and /or an order of abatement. 23.4.5 Continuing Violations The Zoning Officer may issue a Civil Penalty Citation for a violation that continues without being corrected. The violator in such cases may be assessed a penalty for each day of the continuing violation. An initial Civil Penalty Citation for a single violation must be issued before a Civil Penalty Citation for a continuing violation is issued. If the violator has failed to pay the penalty and correct the violation after the initial Civil Penalty Citation, the violator is subject to a Civil Penalty Citation for a continuing violation with a daily penalty. An initial Civil Penalty Citation is not required if the Department has previously issued a Civil Penalty Citation to the violator for the same violation at the same location within the previous two (2) years, or if the violator has been specifically warned concerning the violation. The Zoning Officer may give a single notice of a Civil Penalty Citation for a continuing violation. The notice must contain a copy of the notice of violation and must state that the violation is continuing, that a daily penalty of a specified amount is being imposed, and that the penalty is cumulative. , a separate late -Gn a a sepaFa e Off9R68. GACurrent Planning Div \Tking\ZO &SR Enforcement Amendments \Public Hearing Ordinance 027 Public Hearing Ordinance rte.. - Mzz "M "N Rim: ME GACurrent Planning Div \Tking\ZO &SR Enforcement Amendments \Public Hearing Ordinance 028 Public Hearing Ordinance 10, Section 2. (pages 79 through 80) Amend Sub - section VII -E (Penalties for Violations) of Section VII (Legal Status Provisions) of the Orange County, NC Subdivision Regulations to read as follows: SECTION VII. LEGAL STATUS PROVISION VII -E. PenWtwes fef-V49hitkm Enforcement VII -E -1 Violations: Violators VII -E -1.1 Violation If a person who is the owner or the agent of the owner of any land located within the territorial jurisdiction of Orange County subdivides his /her land in violation of this Ordinance or transfers or sells land by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before the plat has been properly approved under the provisions of this Ordinance and recorded in the Office of the Register of Deeds, he /she shall be in violation of this Ordinance. The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring land does not exempt the transaction from the enforcement provisions of this Ordinance. For the purpose of Article VII -E of the Orange County Subdivision Regulations, the term "person" is defined to include but not be limited to any individual, group of individuals, or any corporation, partnership, association, company, or business, trust, joint venture, or other legal entity. VII -E -1.2 Responsibility The Planning Director shall enforce this Ordinance and the remedies authorized under this Article. The Planning Director shall have the authority to settle any violations that involve the payment of money to the governing body. VII -E -1.3 Planning Director For the purposes of this Article "Planning Director" shall mean the Director of the Orange County, NC Planning and Inspections Department and /or a sworn staff member acting in the capacity of the Planning Director. VII -E -2 Enforcement Procedures VII -E -2.1 Inspections and Investigations: On receiving complaints or other information suggesting a violation of this Ordinance, the Zoning Officer shall investigate the situation and determine whether a violation exists. GACurrent Planning Div\Tking\ZO &SR Enforcement Amendments \Public Hearing Ordinance VII -E -2.2 VII -E -2.3 VII -E -2.4 VII -E -2.5 VII -E -2.6 Public Hearing Ordinance Initial Notice of Violation: 11 Q29 On determining that a violation exists, the Planning Director shall give the responsible person(s) written notice of the violation by certified or registered mail, return receipt requested. When service is made by certified mail, a copy of the notice may also be sent by regular mail. Service shall be deemed sufficient if the notice by certified mail is unclaimed or refused, but the notice by regular mail is not returned by the post office within ten (10) days after mailing. The notice shall describe the nature of the violation and its location, state the actions necessary to correct the violation, and invite the alleged violator to meet with the Planning Director to discuss the violation and how it may be corrected. The Planning Director may provide the alleged violator additional notices of violation. Final Notice of Violation; Correction Order: The Planning Director's final written notice of violation (which may be the initial notice) shall also order correction of the violation, specify a reasonable time period in which the violation must be corrected, state the remedies and penalties authorized in Article VII -E -3 the Planning Director may pursue if the violation is not corrected within the specified time limit. The final written notice of violation shall be served upon the responsible person(s), either in person, posting the notice at the property in violation, or by certified or registered mail, return receipt requested. When service is made by certified mail, a copy of the notice may also be sent by regular mail. Service shall be deemed sufficient if the notice by certified mail is unclaimed or refused, but the. notice by regular mail is, not returned by the post office within ten (10) days after mailing, provided that a final notice of violation is posted in a conspicuous place on the premises affected. Extension of Time Limit to Correct Violation: The recipient of a notice of violation, correction order, or the owner of the property on which the violation occurs, may submit to the Planning Director a written request for extension of the notice or order's specified time limit for correction of the violation. On determining that the request includes enough information to show that the violation cannot be corrected within the specified time limit for reasons beyond the control of the person requesting the extension, the Planning Director may extend the time limit as reasonably necessary to allow timely correction of the violation. Failure to Comply with Notice: If the violator does not comply with a notice of violation, or correction order, the violator shall be subject to enforcement action as prescribed by State law or by this Ordinance. Extension of Time Limit to Correct Violation: The recipient of a notice of violation, correction order, or the owner of the property on which the violation occurs, may submit to the Planning Director a written request for extension of the notice or order's specified time limit for correction of the violation. On determining that the request includes enough information to show that the violation cannot be corrected within the specified time limit for reasons beyond the control of the person requesting the extension, the Planning Director may extend the time limit as reasonably necessary to allow timely correction of the violation. GACurrent Planning Div\Tking\ZO &SR Enforcement Amendments\Public Hearing Ordinance 030 Public Hearing Ordinance 12 VII -E -2.7 Enforcement Action After Time Limit to Correct Violation: Following the time limit for correction of the violation, including any stay or extension thereof, the Planning Director shall determine whether the violation has been corrected. If the violation has been corrected, the Planning Director shall take no further action against the alleged violator. If the violation has not been corrected, the Planning Director may act to impose one or more of the remedies and penalties specified in the notice of violation, or correction order. VII -E -3 Remedies: Penalties: Enforcement Action VII -E -3.1 General The Planning Director may pursue one (1) or more of the following remedies and penalties described below or in Article VII -E-4, or otherwise authorized by common law or statute, to prevent, correct, or abate a violation of this Ordinance. Such statutes include, but are not limited to, G.S. Chapter 14, Section 4 and G.S. Chapter 153A, Sections 123, 324, and 334 et. seq. Use of one (1) of the authorized remedies and penalties does not preclude the Planning Director from using any other authorized remedies or penalties, nor does it relieve any party to the imposition of one (1) remedy or penalty from imposition of any other authorized remedies or penalties. a) Permit Denial or Conditioning: As long as a violation of this Ordinance remains uncorrected, the Planning Director may deny or withhold approval of any permit, certificate, or other authorization provided for in this Ordinance that is sought for the property on which the violation occurs. The Planning Director may also condition a permit, certificate, or authorization on the correction of the violation and /or payment of a civil penalty, and /or posting of a compliance security. b) Injunctive and Abatement Relief in Superior Court: The County may apply to a General Court of Justice in accordance with the provisions of G.S. 153A -123 (e) and G.S. 153A -334 to bring an action for injunction of any illegal subdivision, transfer, conveyance, or sale of land, and the Court shall, upon appropriate findings, issue an injunction and order requiring the offending party to comply with the Subdivision Regulations of the County. C) Criminal Penalties: Any person who, being the owner or the agent of the owner of any land located within the jurisdiction of this Ordinance, subdivides land in violation of this Ordinance, or transfers, or sells land by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before the plat has been properly approved under this Ordinance, and recorded in the Office of the Register of Deeds, shall be guilty of a misdemeanor and shall be punishable, accordingly, by fine and /or imprisonment. The description by metes and bounds in the instrument of transfer, or other document used in the process of selling or transferring land, does not exempt the transaction from penalties. GACurrent Planning DhATking\ZO &SR Enforcement Amendments\Public Hearing Ordinance 031 Public Hearing Ordinance d) Judicial Action to Collect Civil Penalty: 13 A civil action in the nature of a debt may be filed in any court of competent jurisdiction to collect an unpaid civil penalty imposed under Article VII -E-4 below. VII -E-4 Civil Penalty VII -E-4.1 General Any person who proceeds to develop land as authorized by an approved preliminary plat and who fails to carry out such development according to the provisions of the plat, and all specific conditions of approval, shall be in violation of this Ordinance and shall be punished by fine. The Planning Director may impose one (1) or more civil penalties and issue one (1) or more Civil Penalty Citations for a violation as provide below. If the violator does not pay the penalty, the Planning Director may collect it in a court through a civil action in the nature of a debt. VII -E-4.2 Notice The Planning Director shall give the responsible person(s) written notice of the violation, either in person, posting the notice at the property in violation, or by certified or registered mail, return receipt requested. When service is made by certified mail, a copy of the notice may also be sent by regular mail. Service shall be deemed sufficient if the notice by certified mail is unclaimed or refused, but the notice by regular mail is not returned by the post office within ten (10) days after mailing, provided that a notice of violation is posted in a conspicuous place on the premises affected.. The notice shall include a copy of the notice of violation, the amount of the penalty, information about where to pay the penalty, the deadline for payment, which shall be ten (10) days from the date of the notice, and the possibility of civil and /or criminal enforcement. VII -E-4.3 Amount The Planning Director may impose a penalty of five hundred dollars ($500.00) per day of violation. For purposes of assessing the amount of a civil penalty, each day the violation remains uncorrected after receipt of the final notice of violation, or correction order, shall constitute a separate violation that subjects the violator to additional civil penalty. VII -E-4.4 Settlement of Claims The Planning Director is authorized to determine the amount of payment that will be accepted in full and final settlement of some or all of the claims the governing body may have in connection with the violation. The Planning Director shall indicate in writing the claims from which the violator is released. If the violation has not been remedied, payment shall not release a violator from potential criminal prosecution or a claim for injunctive relief and /or an order of abatement. GACurrent Planning Div \Tking\ZO&SR Enforcement Amendments\Public Hearing Ordinance 032 Public Hearing Ordinance 14 VII -E-4.5 Continuing Violations The Planning Director may issue a Civil Penalty Citation for a violation that continues without being corrected. The violator in such cases may be assessed a penalty for each day of the continuing violation. An initial Civil Penalty Citation for a single violation must be issued before a Civil Penalty Citation for a continuing violation is issued. If the violator has failed to pay the penalty and correct the violation after the initial Civil Penalty Citation, the violator is subject to a Civil Penalty Citation for a continuing violation with a daily penalty. The Planning Director may give a single notice of a Civil Penalty Citation for a continuing violation. The notice must contain a copy of the notice of violation and must state the violation is continuing, that a daily penalty of a specified amount is being imposed, and that the penalty is cumulative. , RegulatiORS Of the GOWRty-,- with aRy Of its requiFerneRts shall also SUbjeGt the 9ffBRdeF to a Givil penalty of fifty dGIlaFS ($50.99). if the OffeRdBF fails t9 pay the penalty WithiR teR (10) dayS afteF beiRg Gited f49F a debt; .9 relief that theFe is aRadequate remedy of lawi and (5) Section 3. That this Ordinance be filed in the book of published Ordinances. Section 4. That this Ordinance is effective upon adoption. GACurrent Planning Div \Tking\ZO &SR Enforcement Amendments \Public Hearing Ordinance 033 Public Hearing Ordinance 15 NOW THEREFORE BE IT RESOLVED by the Board of Orange County Commissioners that this Ordinance entitled "An Ordinance Amending the Zoning Ordinance and Subdivision Regulations of Orange County" be adopted. Upon motion of Commissioner seconded by Commissioner , the foregoing Ordinance was adopted this the day of .2003. I, Donna S. Baker, Clerk to the Board of Commissioners for the County of Orange, North Carolina, DO HEREBY CERTIFY that the foregoing is a true copy of so much of the proceedings of said Board at a meeting held on , 2003 as relates in any way to the adoption of the foregoing and that said proceedings are recorded in the minutes of said Board. WITNESS my hand and the seal of said County, this day of , 2003. Clerk to the Board of Commissioners SEAL GACurrent Planning Div \Tking\ZO &SR Enforcement Amendments \Public Hearing Ordinance 034 c. Amend Article 23 (Enforcement) to streamline the citation procedure for zoning violations, to establish procedural guidelines for violation notifications, to allow the Zoning Officer to process civil penalties. An increase in the civil penalty from $100.00 to $500.00 per violation is also a part of the amendment. 2. Orange County Subdivision Regulations Text Amendments a. Amend Section VII (Legal Status Provision), Sub - section VII -E (Penalties for Violation), to identify the citation procedure for violations, and establish procedural guidelines for violation notification, to allow the Planning Director to make assessments for civil penalties, and increases the civil penalty from $50.00 to $500.00 per violation. Craig Benedict said that within this ordinance is how the County identifies with recurring violations and how to provide notices. The County still plans to have personal delivery with registered and certified mail. Civil penalties are suggested to increase from $100 to $500 per day. Presently the demand for payment occurs from the County Commissioners. The recommendation is that the demand for payment occurs with the staff and the courts. The definition of a violation and a violator has been enhanced. The attorney's office has worked closely with the zoning staff to examine the ways to bring violations to a faster conclusion that is fair with full notification and disclosure. He showed a procedural chart of the process of civil penalties. He said that presently there is a backlog of zoning compliance issues because they do not proceed past a certain point and there is no expeditious manner to bring them to a conclusion. John Link assured the Board that before the matters are carried to court that the person involved will know exactly what is involved. Commissioner Jacobs made reference to 23.2.2 and said that the person can be given notice in person or by certified mail. He would like to be assured that there is a personal documented visit first. He made reference to 23.2.3 and read, "a notice of violation is not required where a notice of the same violation has been issued to the same violator at the same property within the previous two years." He asked if someone could have 700 days of $500 a day fines accrue and not get another notice. Craig Benedict said that if a violation is resolved and then the violation is reactivated within the two year timeframe, then a notice is not required to have the repeat violation. Geoff Gledhill said that the idea is that this is not a continuing violation, but the previous one had been stopped and the violator has later resumed the violation. Commissioner Jacobs asked if the appeal would now go to the Board of Adjustment. Geoff Gledhill said that the appeal of the zoning officer's determination has always been to the Board of Adjustment. The difference is that the County Commissioners demanded the civil penalties and this would now be at the staff level. Commissioner Gordon said that it might be possible to work in a visit by a person by giving the person an option. Commissioner Halitosis cautioned the Board of County Commissioners. He said that the Board has given up enough in this County. He said that giving away opportunities for appeal to paid staff is setting a dangerous precedent. Commissioner Carey made reference to 23.4.4 and said that this provides for the Planning Director to make decisions about settlement or mitigation of the civil penalty in instances where appropriate. He thinks it is important that we reflect in here that what we are after is compliance and not money. He would like the language to reflect that the County wants compliance because the objective is not clear. Craig Benedict agreed that this language should be added. Commissioner Gordon asked about the impetus for this amendment and if it was brought forward by the Planning staff. Craig Benedict said that they have had a difficult time in getting compliance on a variety of issues. There have been difficulties with definitions. The amendment is staff generated and the attorney's office also helped. Commissioner Gordon asked if there was a way in this process for someone to access the County Commissioners formally. Craig Benedict said yes and explained the process. Commissioner Halkiotis said that he has watched Geoff Gledhill go after the biggest offender in Efland for years. He does not know what it will take to straighten this out. He does not see how this amendment is going to help the County. Commissioner Jacobs made reference to the visit and said that all he was suggesting is that someone call first and make an attempt and leave a written notice to document that there was a visit. He said that he would feel more comfortable with 23.2.6 if it read, "The recipient of the notice of violation, correction order, or stop work order, or the owner of the property on which the violation occurs may submit to the Board of County Commissioners a written request for extension of the notice or order, specified time limit for correction of the violation. The zoning officer will recommend whether the time limit should be extended. The Board of County Commissioners will determine whether the violation cannot be corrected within the specified time limits for reasons beyond the control of the person requesting the extension." This would allow some opportunity for someone to come before the Board for an extension of time. Chair Brown said that she thinks that this is protecting people who buy property in the County if their neighbors become collectors of junk. She is in favor of a good ordinance that does its job. People call her regularly about horrible things in their neighborhood. Commissioner Carey said that he understands that the staff is trying to wean the Board of County Commissioners from getting involved in each case. Renee Price is concerned from the jump in the fine from $100 to $500 per day. Craig Benedict said that the fines are allowed up to $500 and it does not have to be that high. The North Carolina General Statutes has allowed increases to provide some "teeth" in the ordinances. Chair Gooding -Ray said that it does not say "up to" $500 and this should be clarified. Craig Benedict said that the phrase "may impose" was used. He would agree to adding, "may impose up to $500" to further clarify it. There was no public signed up to speak to this item. Chair Gooding -Ray said that she is concerned about the issue of notice when there are multiple owners of a property that do not actually live on the premises. This will be discussed further at the Planning Board meeting. A motion was made by Commissioner Gordon, seconded by Commissioner Carey to receive the Planning Staff's recommendation and to refer to refer the proposed amendment to the Planning Board for a recommendation to be returned to the Board of County Commissioners no later than May 20, 2003. This includes both sections. VOTE: UNANIMOUS With no further items to address, the public hearing was adjourned at 9:25 p.m. Margaret Brown, Chair Donna S. Baker Clerk to the Board