(A) Enforcement authority. The Town of Bargersville, including the Director, Council, Plan Commission, BZA, Building Commissioner, Fire Marshal, and their delegates are designated to enforce the provisions, regulations, and intent of this chapter, according to I.C. 36-7-4-100 et seq., as amended.
(B) Violation.
(1) Violation of any of the provisions of this chapter is considered a common nuisance and may be abated as nuisances are abated under existing law. Violations may include, but are not limited to:
(a) The erection, demolition, or conversion of any structure, building, or sign without the required approvals;
(b) The use of any land or premises used in violation of any provisions of this chapter; or
(c) Failure to comply with any condition, requirement, or commitment established with the approval of a variance, special exception, site plan, planned unit development, certificate of compliance, or other development approval under this chapter.
(2) Any person who violates or resists the enforcement of any provisions of this chapter is subject to judgment for each offense. Each day a violation exists constitutes a separate offense. A violation exists until corrected. Correction may include:
(a) Stopping an unlawful practice;
(b) Removal of a building, structure, or improvement;
(c) Faithful or otherwise-approved restoration or replacement of a building, structure, site or natural feature;
(d) Any other remedy specified in this chapter; and/or
(e) Other remedy acceptable to the town.
(3) The owner of property violating this chapter is responsible for all enforcement costs related to the violation. This includes costs of any remedy, fines, and enforcement costs (including reasonable attorney's fees, hours worked, photocopying charges, mileage, and other costs incurred directly or indirectly by the town). The respondent only pays for enforcement costs clearly relating to the violation. In all instances, the amount paid by the respondent is determined by a court of jurisdiction or through a compromise agreement between the parties involved.
(C) Enforcement options.
(1) Options for enforcement. The town has the following options to enforce the provisions of this chapter:
(a) Issue a notice to correct violations. The notice to correct may be sent to the owner, tenant, or occupant who commits a violation of this chapter. It may be issued through personal service, First Class U.S. Mail, or by placement of the notice in a conspicuous place on the property. A notice to correct informs the violator of:
1. Date of the notice to correct;
2. Date and place the violation was observed;
3. Name and address of the property owner or responsible party;
4. Section number in violation;
5. The nature of the violation;
6. Name, business address, phone number, and email of the person issuing the notice;
7. Action necessary to correct the violation;
8. Actions available to the town to remedy violations; and
9. That a notice of correction serves as the only notice of civil violation, and no further notice will be required by the town.
(b) Issue a stop work order under division (E).
(c) Enter onto property and take action to bring that property into compliance with this chapter, according to I.C. 36-1-6-2 and divisions (F) or (G) of this section.
(d) Initiate enforcement through an administrative proceeding before the BZA, according to I.C. 36-1-6-9 and division (G) of this section.
(e) To bring a civil action in any court having jurisdiction, according to I.C. 34-28-5-1 and division (H) of this section.
(2) Exercise of options. The town's exercise of the options specified in this section, including the imposition of any penalties for an ordinance violation, are not prerequisites for taking any other action against an alleged violator of this chapter, nor do they prohibit the town from taking any further action.
(3) Warnings. Before exercising any of the town's options under this section, the Administrator may issue a warning to a person alleged to be in violation of this chapter and give the person at least ten days but not more than 60 days to remedy the alleged violation.
(D) Penalties.
(1) Maximum penalties. The maximum civil penalty for the first violation of a provision of this chapter is a fine of $2,500. The maximum civil penalty for the second or subsequent violation of a provision of this chapter (other than a provision that regulates parking) is a fine of $7,500.
(2) Subsequent violations. The penalties listed above for subsequent violations apply whenever the responsible party commits an additional violation of the same provision within 12 months of the first violation, regardless of whether the additional violation is on the same property as the first violation.
(E) Stop work orders.
(1) Occurrence of violation. If the Administrator finds that a violation is occurring or has occurred on a construction site, the Administrator may place a stop work order on any land/property improvement process.
(2) Procedure. Stop work orders must be a written letter stating the nature of the violation and requiring the work and any other illegal activity to stop immediately until the matter is resolved. If someone other than the property owner occupies the property, a copy of the stop work order must be provided to the occupant. This letter must be posted in a conspicuous place and be delivered or mailed to the property owner.
(3) Reasons. Reasons for a stop work order may include:
(a) Not complying with any element of the development standards or any regulation of the Ordinance;
(b) Not obtaining a permit or approval prior to the construction or installation of any improvement requiring a permit or approval by this chapter;
(c) Not completing structures or other site improvements consistent with any approved improvement location permit, variance, special exception, site plan, or other approval;
(d) Not meeting the commitments imposed upon the approval of a special exception, variance, rezoning, site plan, subdivision plat, or other approval, whether recorded or not;
(e) Not meeting the conditions of a PUD ordinance or other rezoning, or any written commitment imposed upon an approval, whether recorded or not;
(f) Illegal use or expansion of use of structures, or structures and land in combination.
(4) Appeals. Any stop work order may be appealed to the BZA. Upon the resolution of the violations to the satisfaction of the Administrator or the BZA, the stop work order is lifted and construction activity may resume.
(F) Municipal action to enforce compliance.
(1) Entry into property. According to I.C. 36-1-6-2(a), if violation of a provision of this chapter exists on real property, the Administrator may have employees or contractors of the town enter the property and take appropriate action to bring the property into compliance with the ordinance.
(2) Notice requirement. Before the town takes action to bring a property into compliance, anyone holding a substantial interest in the property must be given at least ten days but not more than 60 days to bring the property into compliance. Notice must be served on such persons in person or by first class mail. In addition, continuous enforcement orders (as defined in I.C. 36-7-9-2) may be enforced, and liens may be assessed, without the need for additional notice.
(3) Expenses constitute a lien. Whenever the Administrator takes action to bring compliance under this section, the resulting expenses incurred by the town constitute a lien against the property. The lien attaches when notice of the lien is recorded in the office of the Johnson County Recorder. The lien is superior to all other liens except liens for taxes and does not exceed:
(a) Ten thousand dollars for real property that: (a) contains one or more occupied or unoccupied single or double family dwellings or the appurtenances or additions to those dwellings, or (b) is unimproved; or
(b) Twenty thousand dollars for all other real property not described in division (a).
(4) Issuance of bill to owner. According to I.C. 36-1-6-2(b), the Administrator may issue a bill to the owner of the real property for all expenses incurred by the town in bringing the property into compliance, including administrative costs and removal costs. According to I.C. 36-1-6-2(c), a bill issued under this section is delinquent if the owner of the property fails to pay the bill to the Clerk-Treasurer within 30 days after the bill is issued.
(5) Collection of fees and penalties. According to I.C. 36-1-6-2(d), the Clerk-Treasurer's office may prepare a list of delinquent fees and penalties enforceable under this section, including:
(a) The names of the owners of each lot or parcel of real property on which fees or penalties are delinquent;
(b) A description of the premises, as shown on the records of the Johnson County Auditor; and
(c) The amount of the delinquent fees or penalties.
(6) Preparation and recording of instrument. The Clerk-Treasurer's office may then prepare an instrument for each lot or parcel of real property on which fees or penalties are delinquent. The instrument is recorded with the Johnson County Recorder, who charges a recording fee under the fee schedule established in I.C. 36-7-2-10.
(7) Placement of lien on tax duplicate. According to I.C. 36-1-6-2(f), the amount of a lien is placed on the tax duplicate by the Johnson County Auditor. The total amount, including any accrued interest, is collected in the same manner as delinquent taxes are collected and is disbursed to the general fund of the town.
(8) Enforcement of lien against subsequent owner. According to I.C. 36-1-6-2(g), a fee is not enforceable as a lien against a subsequent owner of property unless the lien for the fee was recorded before conveyance to the subsequent owner. If the property is conveyed before the lien is recorded, the town must notify the person who owned the property at the time the fee became payable. The notice must inform the person that payment, including penalty fees for delinquencies, is due not later than 15 days after the date of the notice. If payment is not received within 180 days after the date of the notice, the amount may be considered a bad debt loss.
(9) Release of lien. According to I.C. 36-1-6-2(h), the town releases:
(a) Liens filed with the Johnson County Recorder after the recorded date of conveyance of the property; and
(b) Delinquent fees incurred by the seller;
upon receipt of a written demand from the purchaser or a representative of the title insurance company or agent that issued a title insurance policy to the purchaser. The demand must state that the delinquent fees were not incurred by the purchaser as a user, lessee, or previous owner and that the purchaser has not been paid by the seller for the delinquent fees.
(10) Removal of lien from tax duplicate. According to I.C. 36-1-6-2(i), the Johnson County Auditor removes the fees, penalties, and service charges that were not recorded before a recorded conveyance to a subsequent owner, upon receipt of a copy of the written demand under Subsection I.
(G) Correcting immediate public risk violations.
(1) General requirements. If a condition violating a provision of this chapter presents an immediate risk to public health, safety, or welfare or to property in the town, the Administrator may opt to have employees or contractors of the town enter the property and take immediate action to bring the property into compliance. The Administrator is not required to provide prior notice to the property owner or other person responsible for the violation.
(2) Immediate public risks. Immediate public risk violations may include:
(a) Obstructions. Signs, structures, landscaping, or other materials placed in an easement, sight visibility triangle, or rights-of-way in violation of this chapter;
(b) Distractions. Any sign, structure, landscaping, or other material located on private property that serves to distract or inhibit operators of motor vehicles on adjacent public ways, pedestrians, or other members of the public; and
(c) Other threats. Any other immediate threat to public welfare as determined by the Town Manager or the BZA, based upon the advice and recommendation of the Administrator.
(3) Seizure of materials. Any sign, structure, landscaping, or other material constituting an immediate public risk violation may be seized by the Administrator in a manner resulting in the least damage to the material or the property on which it is located. The town is not required to retain seized landscaping or other materials that are damaged, deteriorated, or in a condition preventing use for the purpose the product was intended or manufactured.
(4) Notice of violation. The Administrator provides notice to the owner of the property, as listed in the records of the Johnson County Auditor, where the violation was located, or any discernible appropriate owner of materials placed within a public way in violation of this chapter, by placing a notice in a conspicuous place on the property and mailing a letter to that property owner. All notice letters are sent to the property owner via certified mail within 24 hours of the seizure. Any notice posted on the property must be posted at the time the material is seized. The letter and posted notice must include:
(a) A description of the materials seized;
(b) A citation of the sections of this chapter that were violated and the characteristics of the violation that posed an immediate threat to public welfare;
(c) The address and phone number of the Administrator and the name of the person to be contacted by the property owner to discuss the violation and request the return of the seized items; and
(d) Instructions describing how, where, and when the seized items may be claimed.
(5) Storage and retrieval of seized materials. The Administrator stores any sign, structure, landscape materials or other items seized in a secure location for a period of no less than 30 days from the date notice was mailed to the property owner. The property owner may claim the seized property following its seizure upon the payment of the fine specified in division (D)(2) and the establishment of a memorandum of agreement between the property owner and Administrator regarding the future use of the item in a manner consistent with this chapter.
(6) Liability. Neither the Administrator, the town, nor any other official or entity involved in the seizure is liable for any damage to the seized materials or the property from which they were taken.
(H) Administrative enforcement.
(1) Provisions that restrict or prohibit actions harmful to the land, air, or water. According to I.C. 36-1-6-9, the town may opt to enforce any provision of this chapter that restricts or prohibits actions harmful to the land, air, or water, through an administrative proceeding before the BZA. The BZA must find that the violation has been proved by a preponderance of the evidence. Upon finding a violation, the BZA may assess a civil penalty within the limits set forth in division (D).
(2) Appeal to court. According to I.C. 36-1-6-9(e), a person who is assessed a civil penalty under this section may appeal the BZA's order imposing the penalty to the Johnson Circuit or Superior Court. An appeal under this section must be filed not more than 60 days after the date on which the BZA enters the order.
(3) Payment of civil penalty. Unless a person who is assessed a civil penalty under this section files an appeal, the person must pay the penalty to the town in a manner authorized by the Clerk-Treasurer. Whenever a person liable for a civil penalty under this section fails to deliver payment to the town within 75 days after the date on which the administrative body enters the order imposing the penalty, the Clerk-Treasurer reports the circumstances to the Administrator for the initiation of appropriate judicial proceedings against the person.
(4) Effect of administrative process. An ordinance violation processed under this section does not constitute a judgment for the purposes of I.C. 33-37. An ordinance violation costs fee may not be collected from the defendant under I.C. 33-37-4.
(Ord. 2022-17, passed 7-19-2022)