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Chapter 10.70 Enforcement and Penalties

10.70.010 Violation of Title.

A. The following actions shall constitute a violation of this Title:

1. Any failure, refusal or neglect to comply with any requirement of this Title. 

2. Allowing or causing a condition that threatens to injure public health, the environment, or public or private property.

3. Failure to correct ineffective erosion, sediment and pollutant control measures after being required to do so by the Director.

B. Each specific incident and each day of non-compliance shall be considered a separate violation of this Title.

10.70.020 Notice of Violation.

A. Written Notice of Violation.  When the Director determines that a violation of this Title has occurred, the Director shall notify the responsible party and the property owner in writing that a violation of this Title has occurred.  The notice of violation shall either be delivered to the responsible party or posted at the property site of the violation, and mailed to all responsible parties. If the address of the responsible party is unknown, then the notice shall, in addition to being posted at the site, be published in a local newspaper for one week.  This publication shall serve as the mailed notice.

B. The written notice shall include the following information:

1. Date violation has occurred;

2. Permit number, where applicable;

3. Site address, legal description or project location;

4. Description of violation;

5. Disclosure that civil penalties, charges and liens may result from a failure to remedy the violations;

6. Deadline to correct violation prior to assessment of civil penalties.  If there is a threat of injury to the public health, the environment, or public or private property, the Director may require correction of the violation within 24 hours.  All violations shall be corrected within 14-calendar days;

7. The date that civil penalties, administrative enforcement fees, charges or liens will begin accumulating; and,

8. Information about the responsible party’s ability to appeal.

C. Failure to respond to notice of violation may result in civil penalties, administrative enforcement fees and stop work orders.

10.70.030 Stop Work Orders.

A. When it is necessary to obtain compliance with this Title, the Director may issue a stop work order requiring that all work, except work directly related to the elimination of the violation, be immediately and completely stopped.  If the Director issues a stop work order, the responsible party shall not resume work until such time as the Director gives specific approval in writing.  The stop work order shall be in writing and shall include:

1. Date of order;

2. Permit number, where applicable;

3. Site address, legal description or project location of stop work order;

4. A description of all violations; and,

5. The conditions under which the work may resume.

B. The stop work order shall be in writing and posted at a conspicuous location at the site.  In addition, a copy shall be sent to the responsible party by certified mail.  For projects in the public right-of-way, the stop work order shall be delivered to the responsible party.

C. It is unlawful for any person to remove, obscure, mutilate or otherwise damage a stop work order.

D. A stop work order shall be effective upon posting.

E. When an emergency condition exists, the Director may issue a stop work order orally.  The Director shall then issue a written notice under Subsection A. above within 24 hours.

10.70.040 Erosion, Sediment and Pollutant Control Plan for Non-Permitted Activities

If non-permitted ground disturbing activities violate provisions of this Title, the responsible party may be required to submit an ESPC Plan to demonstrate what measures will be revised or added to comply with the requirements of this Title.

10.70.050 Voluntary Compliance Agreement.

A. General. When a violation of this Title has occurred, as an enforcement option, the Director may enter into a Voluntary Compliance Agreement with the responsible party.

B. Contents. A Voluntary Compliance Agreement shall set forth the actions to be taken by the responsible party to correct violations of this Title. It may also set forth the actions to mitigate the impacts of violations. The agreement shall set forth a schedule for correction and completion of the mitigation.

C. Effect of Agreement.

1. A Voluntary Compliance Agreement is not enforceable by any third party. By entering into a Voluntary Compliance Agreement, the responsible party waives the right to an appeal under Section 10.70.060.

2. The Director may reduce or waive civil penalties if the responsible party performs all the terms of the Voluntary Compliance Agreement. The Director may not waive civil penalties in any case where the responsible party is a repeat violator. If the responsible party fails to perform according to the terms of the Voluntary Compliance Agreement, the Director shall assess civil penalties from the date the violation occurred for each violation addressed in the Agreement.

3. Subject to the approval of the Director, the responsible party may elect to substitute in-kind services for up to 90% of the amount of all assessed penalties. The Director shall determine the actions that can be deemed in-kind services.

10.70.060 Civil Penalties

(Amended by Ordinance No. 189413, effective March 6, 2019.)  Violations of this Title may result in any of the following penalties:

A.  Civil Penalties.

1.  For each violation, a civil penalty may be assessed of up to $1,000 per day.  Each day a violation exists shall be considered a separate violation.

2.  The Director shall consider the following criteria in determining the amount of any civil penalty to be assessed under this Section:

a.  The nature and extent of the person’s involvement in the violation;

b.  The benefits, economic, financial or otherwise, accruing or likely to accrue as a result of the violation;

c.  Whether the violation was isolated and temporary, or repeated and continuous;

d.  The magnitude and seriousness of the violation;

e.  The City’s costs of investigation and remedying the violation;

f.  Whether any criminal charges have been issued against the person; and

g.  Any relevant, applicable evidence bearing on the nature and seriousness of the violation.

B.  Administrative Enforcement Fees.

1.  The Director may charge a penalty in the form of a monthly enforcement fee for each project found in violation of this Title that meets the following conditions:

a.  The project is subject to a notice of violation or stop work order as described in Sections 10.70.020 and 10.70.030;

b.  A response period of 30 days has passed since the effective date of the notice of violation or stop work order; and

c.  The project remains out of compliance with the initial notice of violation or stop work order or any subsequent notice of violation or stop work order.

2.  The amount of the monthly enforcement fee shall be:

a.  For projects with development in an Environmental Overlay Zone: $800.00

b.  For all other projects: $400.00

If all violations are not corrected within six months from the date of the initial notice of violation, subsequent enforcement fees shall be twice the amount stated above.

3.  Once the monthly enforcement fees begin, they shall continue until all violations listed in the first or any subsequent notice of violation have been corrected, inspected and approved.

4.  Whenever the responsible party believes that all violations listed in the first or any subsequent notice of violation have been corrected, they shall notify the Director.  Upon receipt of such notice, the Director shall promptly schedule an inspection of the project and shall notify the responsible party if any violations remain uncorrected.

5.  When a project meets the conditions for charging an enforcement fee as described in this Section, the Director shall file a statement with the Revenue Division that identifies the property, the amount of the monthly fee, and the date from which the charges are to begin.  The Revenue Division shall then:

a.  Notify the responsible party of the assessment of enforcement fees;

b.  Record a property lien in the Docket of City Liens; and,

c.  Bill the responsible party monthly for the full amount of the enforcement fees owing, plus additional charges to cover the administrative costs of the Revenue Division; and

d.  Maintain lien records until:

(1)  The lien and all associated interest, penalties, and costs are paid in full; and

(2)  The Director certifies that all violations listed in the first or any subsequent notice of violation have been corrected.

10.70.070 Appeal of Notice of Violations and Penalties.

A. Whenever the responsible party has been given a written notice or order pursuant to this title and has been directed to make any correction or to perform any act and the responsible party believes the finding of the notice or order was in error, the responsible party may have the notice or order reviewed by the Director.  If a review is sought, the responsible party shall submit a written request to the Director within 10 days of the date of the notice or order.  Such review shall be conducted by the Director. The responsible party requesting such review shall be given the opportunity to present evidence to the Director.  Following a review, the Director shall issue a written determination.  Nothing in this Section shall limit the authority of the Director to initiate a code enforcement proceeding under Title 22.

B. A responsible party may appeal a written notice of a violation or civil penalty to the Codes Hearings Officer in accordance with Title 22 of the City Code.