(A) (1) Whenever, by the provisions of this chapter, the performance of any act is prohibited, or whenever any regulation, dimension or limitation is imposed on the use of any land, or on the erection or alteration, or the use or change of use of a structure, or the uses within such structure, a failure to comply with such provisions of this chapter shall constitute a separate violation and a separate offense.
(2) (a) Unless otherwise provided herein, each violation of this chapter shall constitute a misdemeanor, except as otherwise provided by statute, and violations of such provisions of this chapter shall be punished by fine or imprisonment as by law provided. Each day any violation of this chapter shall continue shall constitute a separate offense, except as may be specifically provided.
(b) Violations of this chapter shall constitute either a misdemeanor or, at the election of the town, shall subject the offender to a civil penalty upon the issuance of a citation for said violation as hereinafter provided. The civil penalty, if not paid to the town within 15 days of the issuance of a citation, may be recovered by the town in a civil action in the nature of debt. Unless otherwise provided by a specific provision of this chapter, said civil penalties shall be in the amount of $500 for each violation and each day any single violation continues shall be a separate violation.
(c) In addition to the civil penalties set out above, any provision of this chapter may be enforced by an appropriate equitable remedy issuing from a competent jurisdiction. In such case, the General Court of Justice shall have jurisdiction to issue such orders as may be appropriate and it shall not be a defense to the application of the town for equitable relief that there is an adequate remedy at law.
(d) In addition to the civil penalties set out above, any provision of this chapter that makes unlawful a condition existing upon or use made of real property may be enforced by injunction and order of abatement by general court of justice. When a violation of such a provision occurs, the town may apply to the appropriate division of the general court of justice for a mandatory or prohibitory injunction and/or order of abatement commanding the defendant to correct the unlawful condition upon or cease the unlawful use of the property. The action shall be governed in all respects by the laws and rules governing civil proceedings, including the Rules of Civil Procedure in general and Rule 65 in particular.
(e) An order of abatement may direct that buildings or other structures on the property be closed, demolished or removed; or that any other action be taken that is necessary to bring the property into compliance with this chapter. If the defendant fails or refuses to comply with an injunction or with an order of abatement within the time allowed by the court, he or she may be cited for contempt, and the town may execute the order of abatement. The town shall have a lien on the property for the cost of executing an order of abatement in the nature of a mechanic’s and materialman’s lien. The defendant may secure cancellation of an order of abatement by paying all costs of the proceedings and, posting a bond for compliance with the order. The bond shall be given with sureties approved by the Clerk of Superior Court in an amount approved by the judge before whom the matter is heard and shall be conditioned on the defendant’s full compliance with the terms of the order of abatement within a time fixed by judicial order. Cancellation of an order of abatement shall not suspend or cancel an injunction issued in conjunction therewith.
(f) The provision of this chapter may be enforced by one, all or a combination of the remedies authorized and prescribed by this section.
(g) Any ordinances hereafter adopted by the Town Council, the violation of which shall incur a penalty shall specify whether the enforcement shall be pursuant to the civil penalty and/or criminal penal provisions of this section.
(3) (a) Upon determination of a violation of any section of this chapter by the enforcement official, the penalty for which is a civil penalty, the enforcement official of the town shall cause a warning citation to be issued to the violator. The enforcement official shall be the Zoning Administrator, or other such designee of the Town Manager. Such citation shall set out the nature of the violation, the section violated, the date of the violation and shall contain an order to immediately cease the violation. If the violation is in the nature of an infraction for which an order of abatement would be appropriate in a civil proceeding, a reasonable period of time shall be stated during which the violation shall be abated. The warning citation shall specify that a second citation shall incur a civil penalty, together with costs and attorney fees.
(b) An appeal from a warning citation shall be taken within ten days from the date of said warning citation to the Board of Adjustment. Except in any case where the ordinance violated, which is the subject of the warning citation, specifically grants to the Board of Adjustment other powers in considering appeals and such appeal is applied for, the Board of Adjustment in considering appeals of warning citations shall have power only in the manner of administrative review and interpretation where it is alleged that the enforcement official has made an error in the application of an ordinance, in the factual situation as it relates to the application of an ordinance or both.
(c) Where the enforcement official of the town determines that the period of time stated in the original warning citation is not sufficient for abatement based upon the work required or consent agreement, the enforcement official may amend the warning citation to provide for additional time.
(d) Upon failure of the violator to obey the warning citation a civil citation shall be issued by the appropriate official of the town and either served directly on the violator, his or her duly designated agent or registered agent if a corporation, either in person or posted in the United States mail service by first class mail addressed to the last known address of the violator as contained in the records of the town or obtained from the violator at the time of issuance of the warning citation. The violator shall be deemed to have been served upon the mailing of said citation. The citation shall direct the violator to appear before the Town Manager, or his or her designee, within 15 days of the date of the citation, or alternatively to pay the citation by mail. The violation for which the citation is issued shall have been corrected by the time the citation is paid; otherwise, further citations shall be issued. Citations are automatically considered a separate offense for each day the infraction continues until the prohibited activity is ceased or abated. A separate citation will not need to be issued for each day the infraction continues.
(e) Within 15 days from the date the first civil citation is served, the Town Manager shall have the authority, upon written request by the violator, to void the civil citation(s) issued to date and relieve the violator of any civil penalties due. The written request shall state the reasons why the violator believes that the civil citation(s) should be voided. Prior to any civil citations being voided, the violation for which the citation(s) were issued shall be fully corrected. The Town Manager shall use extreme discretion in voiding civil citations and such action shall be taken only under extraordinary circumstances. Such circumstances may include, but not be limited to, an error by an official of the town, civil citations not reaching the violator due to mail delivery difficulties and extreme weather constraints. After 15 days from the first civil citation being served, the Town Manager may only exercise said authority when correcting an error made by an official of the town. In those circumstances involving an error by an official of the town, the Town Manager may exercise said authority without a written request by the violator, but shall consider the recommendation of the official making the error.
(f) If the violator fails to respond to a citation within 15 days of its issuance, and pay the penalty prescribed therein or receive relief from the Town Manager as described above, the town may institute a civil action in the nature of debt in the appropriate division of the state’s general court of justice for the collection of the penalty, costs, attorney fees and such other relief as permitted by law.
(B) Each day that the site is not restored beyond the approved deadline for final removal, as per §§ 152.050 through 152.057 of this chapter, shall be assessed a civil penalty of $50 per day fine. Each day will be treated as a separate offense. If the violation continues for a consecutive 60 days, the town will then have the authority to cash in the performance bond and have the work performed.
(Ord. passed 3-14-2005; Ord. passed 7-8-2012; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 315)
(C) Each sign that is illegally displayed shall be subject to a civil penalty of $25 per sign per day for each day that the offense continues, plus court costs and attorney fees. The town shall have the authority to remove and impound any sign, without further notice, where any sign is creating a public safety hazard through placement in any street, state road or highway, right-of-way or other right-of-way, attached to trees, other natural features, fence posts, telephone and/or utility poles. The town will attempt to notify the sign owners by phone and/or first-class mail that the signs may be picked up after payment of the associated penalties within ten business days at Town Hall before the sign(s) are destroyed. The town will assess a $10 pick-up fee for each sign the town removes. The town shall impound such signs for a period of ten days. The owner of a sign impounded may recover it prior to the expiration of the ten-day impoundment period upon paying all penalties assessed. In the event a sign is not claimed within ten days of its impoundment, the town shall have the authority to dispose of such sign. In the event a violating sign requires special resources for its removal and impoundment, the town, or independent contractor secured by the town, shall remove the sign and the resulting charges shall be assessed to the owner and/or lessee.
(Ord. passed 3-14-2005; Ord. passed 8-8-2011; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 612)
(D) (1) Civil penalty. Any person who violates any of the provisions of §§ 152.150 through 152.170 of this chapter shall be subject to a civil penalty. The amount of civil penalty shall be $100, except as hereinafter provided. Each day of a continuing violation shall constitute a separate violation.
(2) Protected tree penalty. In addition to the above, the penalty for a protected tree as provided by the list prepared by the Tree Board shall be assessed as follows:
Circumference of Tree Removed or Damaged | Civil Penalty | Tree Replacement |
1.50 - 3.50 ft. | $800 | 3 inches in diameter |
3.51 - 5.50 ft. | $1,600 | 3 inches in diameter |
5.51 - 7.50 ft. | $2,400 | 3 inches in diameter |
7.51 - 9.50 ft. | $3,200 | 3 inches in diameter |
9.51 + ft. | $4,000 | 3 inches in diameter |
(3) Development conservation penalty. For proposed developments which remove or damage trees clearly marked for non-encroachment into the tree conservation area, the penalty will be $1,000 per acre per day of the development until the site has been replanted.
(5) Injunctive relief. Whenever there exists reasonable cause to believe that any person is violating §§ 152.150 through 152.170 of this chapter or any standards adopted pursuant to §§ 152.150 through 152.170 of this chapter or any term, condition or provision of an approved permit, the city may, either before or after the institution of any other action or proceeding authorized by this chapter, institute a civil action in the name of the city for a mandatory or prohibitory injunction and an order of abatement demanding the violator to correct the unlawful condition upon or cease the unlawful use of the property.
(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)