HomeMy WebLinkAboutAgenda - 02-24-2003-c1cX119
ORANGE COUNTY
BOARD OF COMMISSIONERS
and
PLANNING BOARD
PUBLIC HEARING AGENDA ITEM ABSTRACT
Meeting Date: February 24, 2003
Action Agenda
Item No.
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: (Y/N) 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
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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):
Plannina 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.
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Public Hearing Ordinance
Text and Section Numbers/Headings =Proposed Language
~teug# =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 "'~.^tT'-,-.^o,"~ °~N~'~T„=o A No
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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.
~~~
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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.
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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.
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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.
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e} Judicial Action to Collect Civil Penalty:
7 ~~~
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.
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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.
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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. 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 Vll-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.
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