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6-9   VIOLATIONS, ENFORCEMENT, AND PENALTIES
   6-9(A)   PURPOSE
   This Section 14-16-6-9 describes what is a violation of this IDO, how the standards and requirements of this IDO will be enforced, and what penalties the City may impose for different types of violations of this IDO.
   6-9(B)   VIOLATIONS
   The following activities and actions are a violation of this IDO and are subject to the enforcement and penalty provisions of this IDO and Part 1-1-99 of ROA 1994 (General Penalty):
   6-9(B)(1)   A building or structure erected, constructed, reconstructed, altered, repaired, converted, or maintained in violation of this IDO.
   6-9(B)(2)   Any building, structure, or land used in violation of this IDO.
   6-9(B)(3)   Providing false or misleading information in an application for any permit or approval.
   6-9(B)(4)   Failure to comply with the terms or conditions attached to any permit or approval issued pursuant to this IDO.
   6-9(B)(5)   Dividing or re-dividing land within the city into lots for sale or development without an approval required by this IDO or recording any plat that has not been approved by the City pursuant to this IDO with the County Clerk.
   6-9(B)(6)   Transferring or conveying a lot created by subdivision without the approval of a final plat of such subdivision and recording that plat with the County Clerk, unless the lot resulted from an exercise of eminent domain or purchase under threat of an exercise of eminent domain. Public agencies shall record plats reflecting acquisitions and transfer of property resulting from an exercise of eminent domain or purchase under threat of an exercise of eminent domain within 6 months of the decision by the court or the purchase, as applicable.
   6-9(B)(7)   Grading or other alteration of a site without meeting the following requirements, as applicable:
   6-9(B)(7)(a)   Approval of a preliminary plat, if the grading or site alteration is related to a proposed subdivision.
   6-9(B)(7)(b)   Approval of a drainage plan or report, or a determination by the City Engineer that no such plan or report is required.
   6-9(B)(7)(c)   Compliance with the provisions of a drainage plan or drainage report or to the requirements of a preliminary or final plat, approved pursuant to this IDO.
   6-9(B)(7)(d)   Obtaining all required permits pursuant to Part 9-5-1 of ROA 1994 (Air Quality Control Board).
   6-9(B)(8)   Failure to immediately cease demolition, development, or land disturbance activity upon the discovery of an archaeological resource.
   6-9(B)(9)   Failure to pay any required impact fees as specified by Article 14-19 of ROA 1994 (Impact Fees) and any associated procedures in the DPM.
   6-9(B)(10)   Removing or defacing any posted sign required for public notice after it is posted until the required duration of the sign posting is complete. 310
   6-9(C)   ENFORCEMENT
   6-9(C)(1)   Authority to Enforce
   6-9(C)(1)(a)   The ZEO has the authority and duty to enforce this IDO pursuant to Subsection 14-16-6-2(B)(1)(c) (Zoning Enforcement Officer).
   6-9(C)(1)(b)   A permit, license, or certificate issued in conflict with the provisions of this IDO is void.
   6-9(C)(1)(c)   In enforcing the requirements of this IDO the City may use any enforcement powers allowed by the State of New Mexico, in any order. The choice of one method of enforcement does not foreclose the City from pursuing others later if the violation is not remedied.
   6-9(C)(1)(d)   Without limiting the generality of Subsection (c) above, the City may enforce this IDO through any of the following powers:
      1.   To institute proceedings to prevent the unlawful action.
      2.   To deny, delay, or withhold permits and approvals.
      3.   To revoke permits and approvals after giving the property owner or applicant notice of intent to revoke the permit or approval.
      4.   To issue a stop work order requiring that all work on a property or structure or operation of a use that is in violation of this IDO cease, or if a violation is suspected but not known, then until the existence or absence of the violation can be confirmed.
      5.   To require the immediate abatement of any use or the vacation or removal of a structure that creates a threat to the public health and safety or to the health and safety of those in or around the use or structure.
      6.   To order the removal of any sign or violating portion of a sign that is erected or maintained in violation of this IDO.
         a.   At least 10 calendar days’ notice in writing shall be given to the owner of such sign, or of the structure or premises on which such sign is located, to remove the sign or to bring it into compliance with this IDO.
         b.   Upon failure to remove the sign or to comply with this notice, the ZEO shall have the sign removed.
         c.   Any cost of removal incurred by the City shall be assessed to the owner of the property on which such sign is located and may be collected in the manner of ordinary debt or in the manner of taxes, and such charge shall be a lien on the property.
      7.   To terminate all or part of a Site Plan where the applicant has used the property or constructed improvements in violation of the terms and conditions attached to an approved Site Plan.
         a.   If an approved Site Plan has been partially developed, the termination shall only apply to the undeveloped portion of the property, and any termination of a part of the Site Plan shall not adversely affect or impose additional requirements on the developed lots.
         b.   Termination of all or part of a Site Plan does not preclude approval of a similar plan at a later date.
         c.   If a Site Plan is terminated, the City shall review applicable Infrastructure Improvements Agreements (IIAs) or development agreements to determine necessary amendments to such agreements and/or release of any financial guarantee pursuant to Section 14-16-6-4(R) (Required Improvements and Financial Assurance).
      8.   To terminate all or part of a Master Development Plan where constructed improvements are in violation of the terms and conditions attached to an approved Master Development Plan, pursuant to provisions a through c in Subsection 14-16-6-9(C)(1)(d)7 for a Site Plan above.
      9.   To impose civil and criminal penalties as allowed by New Mexico law.
   6-9(C)(2)   Notice and Timing of Enforcement
   6-9(C)(2)(a)   The City shall attempt to give the property owner, agent, or occupant of a lot or a building that contains a violation of this IDO written notice of the violation and a reasonable amount of time to cure the violation.
   6-9(C)(2)(b)   The property owner, agent, or occupant may request additional time (beyond that allowed by this IDO or the notice of violation) to cure a violation, and the ZEO may approve additional time to cure for good cause shown.
   6-9(C)(3)   Inspectorial Searches by Consent
   6-9(C)(3)(a)   Within the scope of his/her authority, the ZEO or authorized zoning inspectors may conduct an inspectorial search, with the voluntary consent of an occupant or custodian of the premises or vehicles to be inspected, who reasonably appears to the ZEO or the inspector to be in control of the places to be inspected or otherwise authorized to give such consent.
   6-9(C)(3)(b)   Before requesting consent for an inspectorial search, the ZEO or inspector shall inform the person to whom the request is directed of the authority under and purposes for which the inspection is to be made and shall, upon demand, exhibit an identification card or official City document evidencing their authority to make such inspections.
   6-9(C)(3)(c)   Inspections undertaken pursuant to this Subsection 14-16-6-9(C)(3) shall be carried out with due regard for the convenience and privacy of the occupants, and during the daytime unless, because of the nature of the premises, the convenience of the occupants, the nature of the possible violation or other circumstances, there is a reasonable basis for carrying out the inspection at night.
   6-9(C)(3)(d)   Unless advance notice would be likely to cause the suspected violation to be temporarily eliminated so as to frustrate enforcement, notice of the purpose and approximate time of an inspectorial search of an area not open to the general public shall be sent to the occupants or custodians of premises or vehicles.
   6-9(C)(4)   Inspectorial Searches without Consent
   6-9(C)(4)(a)   Upon sufficient showing that required consent to an inspectorial search has been refused or is otherwise unobtainable within a reasonable period of time, the ZEO may make application to the district court for an inspection order/search warrant. Such application shall be made to a district court having jurisdiction over the premises or vehicle to be searched. Such application shall set forth the following information:
      1.   The particular vehicle(s), premises, or portion of a vehicle or premises sought to be inspected.
      2.   That the owner or occupant of the premises or vehicle(s), has refused entry.
      3.   That inspection of the premises or vehicle(s) is necessary to determine whether they comply with the requirements of this IDO.
      4.   Any other reason necessitating the inspection, including knowledge or belief that a particular condition exists in the premises or vehicle(s) which constitutes a violation of this IDO.
      5.   That the ZEO or inspector is authorized by the City to make the inspection.
   6-9(C)(4)(b)   The application shall be granted and the inspection order/search warrant issued upon a sufficient showing that inspection in the area in which the premises or vehicles in question are located, or inspection of the particular premises or vehicles, is in accordance with reasonable legislative or administrative standards, and that the circumstances of the particular inspection for which application is made are otherwise reasonable. The district court shall make and keep a record of the proceedings on the application and enter thereon its finding in accordance with the requirements of this section.
   6-9(C)(4)(c)   The ZEO or inspector executing the inspection order/search warrant shall, if the premises or vehicle in question are unoccupied at the time of execution, be authorized to use such force as is reasonably necessary to enter and make the inspection.
   6-9(C)(4)(d)   After execution of the order or after unsuccessful efforts to execute the order, as the case may be, the ZEO shall return the order to the district court with a sworn report of the circumstances of execution or failure to execute the order.
   6-9(C)(5)   Administrative Civil Enforcement
   If the ZEO determines that a violation of the IDO has not been adequately cured within a reasonable time after an initial notice has been issued pursuant to Subsection 14-16-6-9(C)(2), the ZEO may pursue administrative civil enforcement pursuant to this Subsection 14-16-6-9(C)(5). Such administrative civil enforcement does not preclude any other enforcement action authorized by law.
   6-9(C)(5)(a)   Notice of Administrative Civil Enforcement
   If the ZEO chooses to pursue administrative civil enforcement, the ZEO shall prepare and serve a written notice that includes all of the following information:
      1.   The name and contact information of the individual(s) believed to be responsible for the violation.
      2.   The physical address or legal description of the location where the alleged violations have occurred or are occurring.
      3.   A description of the alleged violation(s), including citations to the IDO Sections believed to have been violated and the facts indicating that such Sections are being violated.
      4.   A description of the actions or penalties that are sought by the ZEO for the alleged violation(s).
      5.   A statement that the notice will be immediately filed with the City Office of Administrative Hearings within 3 business days and that a hearing on the matter will be scheduled between 15 and 45 calendar days after the office receives the notice.
      6.   The address, email, and telephone number to contact the ZEO or appropriate City department for additional information and for delivery of any responses to the allegations.
   6-9(C)(5)(b)   Notice of Hearing
      1.   The City Office of Administrative Hearings shall schedule a hearing on all matters for which it has received a notice of administrative civil enforcement between 15 and 45 calendar days after the office receives the notice pursuant to the Independent Hearing Office Ordinance (ROA 1994 Part 2-7-8). 311
      2.   A notice of hearing may be served by any employee or agent of the City, including the ZEO or any sworn officer of the Albuquerque Police Department.
      3.   The notice of hearing shall be served to all individuals listed on the notice of administrative civil enforcement and the ZEO through any of the following means:
         a.   Personal service upon the person(s) or their attorney or duly authorized agent(s).
         b.   First class mail, return receipt requested.
         c.   Conspicuous posting within the frontage of the property where the alleged violation has occurred for a period of at least 30 days. It is unlawful for any person to remove or otherwise tamper with this posting, and any removal or tampering of the notice is punishable pursuant to the criminal penalties of Part 1-1-99 of ROA 1994 (General Penalty).
      4.   The notice of hearing shall include all of the following information:
         a.   The date, time, and location of the hearing; the name of the hearing officer scheduled to preside of the matter; and contact information for the City Office of Administrative Hearings where individuals may request additional information.
         b.   A brief description of the nature and purpose of the hearing.
      5.   If a resolution is reached before a scheduled hearing, the ZEO shall request, as soon as possible, that the hearing be cancelled. The City Office of Administrative Hearings shall provide notice that the hearing has been cancelled to all individuals listed on the notice of administrative civil enforcement and any other parties to this matter by email or first class mail.
      6.   If the terms of the resolution are not met by the alleged violator(s) to the satisfaction of the ZEO, the ZEO may request that the City Office of Administrative Hearings reschedule and provide notice of the rescheduled hearing pursuant to the procedures above.
   6-9(C)(5)(c)   Response to Notice of Administrative Civil Enforcement
      1.   The alleged violator or their attorney or duly authorized agent may request to meet with the ZEO prior to the hearing to attempt to resolve the alleged violation(s) and avoid a hearing.
      2.   Once a hearing is scheduled, parties may submit a written response to the City Office of Administrative Hearings no less than 5 business days before the hearing. Any response submitted shall include proof that the response has also been provided to any other parties listed on the notice of administrative civil enforcement and the ZEO.
   6-9(C)(5)(d)   Hearing
      1.   The hearing shall be conducted pursuant to the Independent Hearing Office Ordinance (ROA 1994 Part 2-7-8).
      2.   If the hearing officer finds that a violation of the IDO occurred or is occurring, the hearing officer may issue a civil penalty against any individual(s) who was served notice of administrative civil enforcement pursuant to Subsection 14-16-6-9(D)(3)(b) above, regardless of the presence of that individual(s) at the hearing.
   6-9(C)(5)(e)      Enforcement of Remedies and Penalties
      1.   Within 15 calendar days after the hearing, the hearing officer shall send a written order of remedy or penalty to all parties by email, first class mail, or facsimile.
      2.   The order of remedy or penalty shall state the determination of the hearing officer regarding the alleged violations listed in the notice of administrative civil enforcement and shall contain findings of fact and conclusions of law.
      3.   If the hearing officer determines that no violation of this IDO is being or has been committed, the order of remedy or penalty shall state that the alleged violation is being dismissed
      4.   If the hearing officer determines that a violation of the IDO is being or has been committed, the order of remedy or penalty shall state the remedies or penalties to be imposed by the City. The remedies and penalties may include any of the following:
         a.   An order to cease and desist violations of this IDO.
         b.   An order to bring the property in question into compliance with the IDO.
         c.   An order to pay all of the City’s costs for the associated enforcement action and administrative hearing.
         d.   An order to pay a civil fine not to exceed $500 per violation per day.    
      5.   Any party aggrieved by a final decision of the hearing officer may appeal the decision to the District Court within 30 days of the final order, pursuant to the New Mexico Rules of Civil Procedure.
      6.   The Planning Department shall monitor compliance with the order of remedy or penalty. If the Planning Department has reason to believe that any individual subject to the order is not complying with the order, the Planning Department may take one or more of the following actions:
         a.   Refer the matter to the City Attorney for the commencement of a civil action.
         b.   Refer the matter to the City Attorney or the District Attorney for the commencement of criminal proceedings.
         c.   Place a lien on the property in an amount equal to the outstanding fines ordered pursuant to this ordinance until the owner has fully complied with the order.
         d.   Commence a supplemental enforcement action as otherwise provided by law, including but not limited to Part 1-1-99 of ROA 1994 (General Penalty).
   6-9(C)(6)   Disclaimer
   This IDO shall not be construed to hold the City or its authorized representatives responsible for any damage to persons or property by reason of the inspection or re-inspection authorized by this IDO, or failure to inspect or re-inspect, or the issuance of a building permit authorized by this IDO, the DPM, or other adopted City regulations.
   6-9(D)   PENALTIES
   6-9(D)(1)   Any person, firm, or corporation violating any provision of this IDO, or any amendments to it, shall be subject to the penalty provisions set forth in Part 1-1-99 of ROA 1994 (General Penalty) or in any resolution of City Council establishing those penalties.
   6-9(D)(2)   Each day this IDO is violated shall be considered a separate offense.
   6-9(D)(3)   The City may, in its discretion, waive financial penalties for periods before violation is cured or may condition such waivers on prompt cure of the violation. Any waiver of penalties shall be accompanied by a written rationale for the waiver.

 

Notes

310
310   2020 IDO Annual Update - Citywide Text Amendments – EPC REVIEW. EPC Recommended Condition #1.
311
311   2020 IDO Annual Update - Citywide Text Amendments – EPC REVIEW. See Exhibit 6-9(C)(5) Civil Enforcement. EPC Recommended Condition #1. Revised editorially to retain “a hearing” for clarity.