§ 156.999  PENALTY.
   (A)   Civil penalties.
      (1)   Civil penalty for a violation. Any person who violates any of the provisions of this chapter, or rule or order adopted or issued pursuant to this chapter, or who initiates or continues a land-disturbing activity for which a plan is required except in accordance with the terms, conditions, and provisions of an approved plan, is subject to a civil penalty. The maximum civil penalty amount that the town may assess per violation is $5,000. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation. When the person has not been assessed any civil penalty under this section for any previous violation, and that person abated continuing environmental damage resulting from the violation within 180 days from the date of the notice of violation, the maximum cumulative total civil penalty assessed under this section for all violations associated with the land-disturbing activity for which the erosion and sedimentation control plan is required is $25,000.
      (2)   Environmental impacts. In addition to the civil penalties provided with the town's fee schedule, the Plan Administrator may assess a one-time civil penalty of $5,000 on the day of the violation for off-site sedimentation damage especially in the case of damage to a body of water, wetlands or buffer. Moreover, any malicious or intentional destruction of silt fencing or other sedimentation and erosion control device will result in a one-time fine of up to $1,000.
      (3)   Repeat offender. An additional civil penalty of $1,000 per day shall be charged to any person assessed a civil penalty for any violation of this chapter within the prior two years. A person may be assessed a civil penalty from the date the violation is detected if the deadline stated is not met. Each day of a continuing violation shall constitute a separate violation.
      (4)   Civil penalty assessment factors. The Program Administrator shall determine the amount of the civil penalty based upon the following factors:
         (a)   The degree and extent of harm caused by the violation;
         (b)   The cost of rectifying the damage;
         (c)   The amount of money the violator saved by noncompliance;
         (d)   Whether the violation was committed willfully; and
         (e)   The prior record of the violator in complying of failing to comply with this chapter.
      (5)   Notice of civil penalty assessment. The Program Administrator shall provide notice of the civil penalty amount and basis for assessment to the person assessed. The notice of assessment shall be served by any means authorized under G.S. § lA-1, Rule 4. A notice of assessment by the town shall direct the violator to either pay the assessment, contest the assessment within 30 days by filing a petition for hearing with the town or file a request with the Sedimentation Control Commission for remission of the assessment within 60 days of receipt of the notice of assessment. A remission request must be accompanied by a waiver of the right to a contested case hearing pursuant to G.S. Chapter 150B and a stipulation of the facts on which the assessment was based.
      (6)   Final decision. The final decision on contested assessments shall be made by the Town Council in accordance with this chapter.
      (7)   Appeal of final decision. Appeal of the final decision by Town Council shall be to the Superior Court of Johnston County. Such appeals must be made within 30 days of the final decision of the Town Council.
      (8)   Remission of civil penalties. A request for remission of a civil penalty imposed under G.S. § 113A-64 may be filed with the Town Council within 60 days of receipt of the notice of assessment. A remission request must be accompanied by a waiver of the right to a contested case hearing pursuant to G.S. § 150B-31 and a stipulation of the facts on which the assessment was based. The following factors shall be considered in determining whether a civil penalty remission request will be approved:
         (a)   Whether one or more of the civil penalty assessment factors in G.S. § 113A-64(a)(3) were wrongly applied to the detriment of the petitioner.
         (b)   Whether the petitioner promptly abated continuing environmental damage resulting from the violation.
         (c)   Whether the violation was inadvertent or a result of an accident.
         (d)   Whether the petitioner had been assessed civil penalties for any previous violations.
         (e)   Whether payment of the civil penalty will prevent payment for necessary remedial actions or would otherwise create a significant financial hardship.
         (f)   The assessed property tax valuation of the petitioner's property upon which the violation occurred, excluding the value of any structures located on the property.
      (9)   Collection. If payment is not received within 60 days after it is due, the town may institute a civil action to recover the amount of the assessment. The civil action may be brought in the Johnston County Superior Court, or the County Superior Court of the violator's residence or principal place of business. Such civil actions must be filed within three years of the date the assessment was due. An assessment that is not contested and a remission that is not requested is due when the violator is served with a notice of assessment. An assessment that is contested or a remission that is requested is due at the conclusion of the administrative and judicial review of the assessment.
      (10)   Credit of civil penalties. The clear proceeds of civil penalties collected by the town under this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. § 115C-457.2. Penalties collected by the town may be diminished only by the actual costs of collection. The collection cost percentage to be used shall be established and approved by the North Carolina Office of State Budget and Management on an annual basis, based upon the computation of actual collection costs, by the town for the prior fiscal year.
   (B)   Criminal penalties. Any person who knowingly or willfully violates any provision of this chapter, or rule or order adopted or issued by the Commission or the town or who knowingly or willfully initiates or continues a land-disturbing activity for which a plan is required except in accordance with the terms, conditions, and provisions of an approved plan, shall be guilty of a Class 2 misdemeanor which may include a fine not to exceed $5,000 as provided in G.S. § 113A-64.
(Ord. 2020-09-07, passed 9-21-20)