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The policies in this Section apply to enforcement at all permitted sites covered by Grading and Erosion Control (GEC) Permits and Associate GEC Permits in the City pursuant to Part 7.4.6. The Stormwater Enterprise Manager retains all options concerning chosen enforcement approaches and compliance is required at all times. Enforcement policies and procedures are set forth in the Engineering Criteria. (Ord. 23-03)
If the Stormwater Enterprise Manager determines that an activity governed by this Part 7.5.10 is creating a nuisance to the public health, safety, and welfare or is not compliant with the requirements of this UDC, the City Engineer may use any or all of the powers listed below:
A. Informal Contact: The Stormwater Enterprise Manager shall have the authority to effectuate the abatement of the nuisance or compliance through informal meetings or conversations resulting in a verbal agreement.
B. Letter of Noncompliance: The Stormwater Enterprise Manager may issue a letter of noncompliance to the property owner, developer, and/or contractor that contains a description of the measures required to eliminate the nuisance or noncompliance and a date by which these measures must be implemented.
C. Stop Work Order:
1. If an imminent and substantial hazard exists that jeopardizes public safety, property, and/or water resources, including water quality, the Stormwater Enterprise Manager may issue an immediate stop work order and/or take emergency actions to abate or minimize the hazard at the full expense of the record owner of the property. A stop work order shall be in effect from the time issued.
2. The Stormwater Enterprise Manager may issue a stop work order for the entire site or a specified portion of the site for the purpose of preventing any adverse impacts or minimizing additional adverse impacts. The Stormwater Enterprise Manager may specify allowable work in order to eliminate the nuisance or bring the site into compliance.
D. Revocation of Permit: The Stormwater Enterprise Manager may temporarily or permanently revoke the GEC Permit or Associate GEC Permit.
E. Notice and Order: The Stormwater Enterprise Manager may issue a notice and order ordering the elimination of the nuisance and/or noncompliance by a specified date based on the nature of the violation. If compliance with the notice and order is not achieved by the deadline, the Stormwater Enterprise Manager may proceed with abatement as authorized in this Part 7.5.10.
F. Civil Action: The Stormwater Enterprise Manager may ask the City Attorney to initiate a civil action in the District Court for injunctive relief to abate the violations.
G. Issuance of Summons: The Stormwater Enterprise Manager may request issuance of a Municipal Court summons for violations of this Part 7.5.10.
H. Additional Actions: Nothing in this Part 7.5.10 shall be construed to preclude the Stormwater Enterprise Manager from seeking other enforcement actions or remedies in addition to or in lieu of the remedies granted in this Section 7.5.10. Enforcement actions or remedies provided in this Part 7.5.10 shall be cumulative and in addition to any other remedies that may be available to the Stormwater Enterprise Manager. (Ord. 23-03)
A. Notice: Any notice required as part of enforcement of this UDC in accord with this Part 7.5.10 shall be in writing and include:
1. The street address and a description sufficient for identification of the property upon which the violation, nuisance, or noncompliance is located.
2. A statement of the asserted violation, nuisance, or noncompliance.
3. A statement of the action required to be taken and/or the date or time period by which the violation must be abated or otherwise corrected.
4. A statement advising that if any required corrective measures are not commenced within the time specified, the Stormwater Enterprise Manager may proceed to cause the corrective measures to be undertaken and charge the corrective measures against the property or its owner.
5. A statement advising that any person having any record title or legal interest in the property may appeal from the notice and order directly to the Public Works Director provided the appeal is made in writing and filed with the Stormwater Enterprise Manager within ten (10) days from the date of service of the notice and order, that failure to appeal will constitute a waiver of all right to a hearing and determination of the matter.
B. Service of Notice:
1. General: The notice and order, and any amended or supplemental order, shall be served upon the record owner or the owner's agent and posted on the property. Failure to serve any person required to be served shall not invalidate any proceedings as to any other person duly served or relieve any person from any duty or obligation imposed by the provisions of this Part 7.5.10.
2. Method of Service:
a. Service of the notice and order shall be made either in person or by mailing a copy of the notice and order by certified mail, postage prepaid, return receipt requested, to each owner or agent of the owner at the address that appears on the assessment roll of the County or is known to the Stormwater Enterprise Manager. If no address of any person so appears or is not known to the Stormwater Enterprise Manager, then a copy of the notice and order shall be mailed, addressed to the person, at the address of the real property involved in the proceedings. Failure of any person to receive notice shall not affect the validity of any proceedings pursuant to this Part 7.5.10.
b. Service by certified mail in the manner provided shall be effective on the date of mailing. Service in person shall be effective on the date service is effectuated.
3. Proof of Service: Proof of service of the notice and order shall be certified to at the time of service by a written declaration under penalty of perjury executed by the person effecting service, declaring the time, date, and manner in which service was made. The declaration, together with any receipt card returned in acknowledgment of receipt by certified mail, shall be affixed to the copy of the notice and order retained by the City Engineer. (Ord. 23-03)
A. Any failure, neglect, or refusal to obey or comply with a notice and order or a stop work order shall be a violation of the City Code punishable by up to ninety (90) days in jail, a fine of not less than $250 or more than $500, or a combination thereof. Each day in violation of a stop work order or notice and order shall be deemed a separate offense.
B. Notwithstanding whether a violation under Subsection A has occurred, any ongoing construction activities that take place takes place in the following circumstances shall be a violation of the City Code punishable by up to ninety (90) days in jail, a fine of not less than $250 or more than $500, or a combination thereof. Each day in violation of the following shall be deemed a separate offense:
1. If a stop work order or notice and order has been issued by the City Engineer, except for specific construction activities allowed as a part of the stop work order or notice and order; or
2. Without an active GEC Permit or Associate GEC Permit, if required by this UDC; or
3. In a manner that causes, permits, or contributes to the discharge into the municipal stormwater drainage system pollutants that could cause the City of Colorado Springs to be in violation of its Colorado discharge permit system municipal stormwater discharge permit; or
4. In a manner that does not comply with the Colorado Water Quality Control Act (Colorado Revised Statutes Section 25-8-103 (2013)), Clean Water Act (33 USC §§1251 et seq.), regulations promulgated, certifications or permits issued, in addition to the requirements included in the Stormwater Construction Manual. In the event of conflicts between those requirements and water quality control laws, rules, or regulations of other Federal or State agencies, the more restrictive laws, rules, or regulations shall apply. (Ord. 23-03)
A. General: All appeals of zoning enforcement decisions made by the Stormwater Enterprise Manager in accordance with this Part 7.5.10 shall be heard by the Public Works Director pursuant to this Section 7.5.1006. In hearing appeals, the Public Works Director may make reasonable interpretations of the provisions Section 7.5.1006.
B. Eligibility, Initiation, and Effect of Appeal:
1. Any person served may appeal from any notice and order any action of the Stormwater Enterprise Manager in accord with this Part 7.5.10 by filing a written appeal with the Stormwater Enterprise Manager.
2. The written appeal shall be filed within ten (10) days after the date of service of the notice and order, and if the end of such period falls on a weekend or holiday, then the appeal shall be filed on the next business day. The appeal shall include:
a. The names, official mailing addresses, and signatures of all parties named as appellants.
b. A brief statement setting forth the legal interest of each of the appellants in the land involved in the notice and order.
c. A brief statement, in ordinary and concise language, of the specific order or action protested, together with any material facts claimed to support the contentions of the appellant. The appellant must substantiate the following:
(1) Identify the specific City Code provisions that are in dispute.
(2) Show that the Stormwater Enterprise Manager's decision is incorrect because of one (1) or more of the following:
(a) It was against the express language of this UDC;
(b) It is erroneous; or
(c) It is clearly contrary to law.
d. A brief statement, in ordinary and concise language, of the relief sought and the reasons why it is claimed the protested order should be reversed, modified, or otherwise set aside. The appellant shall identify the benefits and adverse impacts created by the decision, describe the distribution of the benefits and impacts between the community and the appellant, and show that the burdens placed on the appellant outweigh the benefits to the community, including the general health, safety, and welfare.
3. If any required appeal information is not provided, the Stormwater Enterprise Manager shall notify the appellant that the appeal will not be scheduled until all required information is received.
4. Any stop work order or notice and order issued by the Stormwater Enterprise Manager shall be in effect from the time issued. The notice and order or stop work order shall be in effect and remain in effect during the pendency of any appeal. Failure to comply with a stop work order or notice and order shall be a violation of the City Code regardless of whether an appeal has been filed or is pending before the Public Works Director or the courts of Colorado.
5. The failure of any person to file an appeal in accord with this Section 7.5.1006 shall constitute a waiver of the right to a hearing and adjudication of all or a portion of the notice and order, or any portion thereof
C. Notice:
1. The hearing shall be set to take place between ten (10) and thirty (30) days from the date the appeal was received at the office of the Stormwater Enterprise Manager. The Stormwater Enterprise Manager shall provide written notice to the appellant of the time, date, and place of the hearing .
2. A hearing notice shall be posted on or adjacent to the affected property by the appellant or a designated representative at least ten (10) days prior to the date of the hearing. The appellant or designated representative shall also sign an affidavit stating the property was properly posted in accord with the posting requirements of the Stormwater Enterprise Manager. The completed affidavit must be received by the Stormwater Enterprise Manager at least three (3) days prior to the day of the hearing, or the hearing will be canceled.
D. Meeting and Decision:
1. The hearing on the appeal shall only consider those matters or issues specifically raised by the appellant in the written appeal.
2. An audio or audio/video recording of the entire proceeding shall be made by the Stormwater Enterprise Manager. A transcript of the proceedings shall be made available to all parties upon request and upon payment of a transcript fee established by the City Council.
3. The Public Works Director shall have the authority to make and adopt rules and regulations governing procedures before the Public Works Director. However, Colorado Rules of Evidence shall not apply at the hearing. The Stormwater Enterprise Manager and appellants shall have the following rights:
a. To call and examine witnesses on any relevant matter or issue;
b. To introduce documents or other physical evidence;
c. To cross examine opposing witnesses on any relevant matter or issue;
d. To impeach any witness regardless of which party first called them to testify;
e. To rebut the evidence against them; and
f. To represent themselves or to be represented by a licensed Colorado attorney. The Stormwater Enterprise Manager shall be represented by the Office of the City Attorney.
4. At the conclusion of the hearing on appeal, the Public Works Director may modify, affirm, or reverse the decision or requirements of the notice and order.
5. Any appellant who is aggrieved by the decision of the Public Works Director may appeal that decision to the courts of Colorado in accord with the Colorado Rules of Civil Procedure, rule 106(a)(4), as amended. (Ord. 23-03)
A. Imposition of Expenses:
1. The Stormwater Enterprise Manager shall keep an itemized account of the expenses incurred by Stormwater Enterprise in correction of any nuisance to the public health, safety, and welfare pursuant to this Part 7.5.10. The Stormwater Enterprise Manager shall then bill the property owner for all costs incurred by Stormwater Enterprise.
2. Service of the bill shall be made either personally or by mailing a copy of the bill by certified mail, postage prepaid, return receipt requested, to each property owner at their address as it appears on the tax records of the County or as known to the Stormwater Enterprise Manager.
3. If full payment is not received within thirty (30) days of receipt of bill (or thirty (30) days from mailing if no return receipt received), the Stormwater Enterprise Manager shall ask the City Clerk to schedule a hearing before City Council on charges to be made against the property owner or the property.
B. Setting of Hearing: The Stormwater Enterprise Manager shall fix the time, date, and place for hearing the charges as billed by the Stormwater Enterprise Manager, and any protests or objections to the charges. The Stormwater Enterprise Manager shall cause notice of the hearing to be served by certified mail, postage prepaid, return receipt requested, addressed to the property owner as their name appears on the tax records of the County Assessor, if such so appears, or as known to the Stormwater Enterprise Manager. Notice shall be given at least ten (10) days prior to the date set for the hearing, and shall specify the day, hour, and place when City Council will hear and pass upon the charges billed by the Stormwater Enterprise Manager, together with any objections or protests that may be filed in accord with Subsection C below.
C. Protests and Objections: Any property owner affected by the proposed charge may file written protests or objections with the Stormwater Enterprise Manager. The protest or objection must be received by the Stormwater Enterprise Manager at least the day before the hearing. Each protest or objection must contain a description of the property and the grounds of the protest or objection. The Stormwater Enterprise Manager shall endorse on every protest or objection the date it was received and shall present the protest or objections to the City Council at the time set for the hearing. No other protests or objections shall be considered.
D. Hearing and Decision:
1. Upon the day and hour fixed for the hearing, the City Council shall hear and pass upon the charges as billed by the Stormwater Enterprise Manager together with any objections or protests. The Council may make revisions, corrections, and modifications to the charges it may deem just. The decision of the City Council on the charges, and on all protests or objections shall be final and conclusive.
2. The City Council may order that a charge be made a personal obligation of the property owner or assess the charge against the property involved:
a. If the City Council orders that the charge be a personal obligation of the property owner, it shall direct the City Attorney to collect the same on behalf of the Stormwater Enterprise by use of all appropriate legal remedies.
b. If the City Council orders that the charge be assessed against the property, it shall confirm the assessment roll, and the assessment shall then constitute a special assessment against the property and shall be collected in the same manner as any other special assessment of the City.
E. Post-Decision Actions and Limitations:
1. The validity of any assessment made pursuant to this Part 7.5.10 shall not be contested in any action or proceeding unless the contest is commenced within thirty (30) days after the assessment is placed upon the assessment roll. Any appeal from a final judgment in such action or proceeding must be perfected within thirty (30) days after entry of the judgment.
2. Immediately upon being placed on the assessment roll, the assessment shall be deemed to be complete, the several amounts assessed shall be payable, and the assessments shall be liens against the lots or parcels of land assessed, respectively. The liens shall be subordinate to all existing special assessment liens previously imposed upon the same property, and shall be paramount to all other liens except for State, County and municipal liens with which it shall be at parity. The liens shall continue until the assessment and all interest due and payable are paid.
3. All assessments remaining unpaid after thirty (30) days from the date of recording on the assessment roll shall become delinquent and shall bear interest at the rate of one (1) percent per month from and after the date.
4. After confirmation of the report, certified copies of the assessment shall be given to the County Treasurer on or before October 15.
5. The amount of the assessment shall be collected at the same time and in the same manner as general taxes are collected; and shall be subject to the same penalties and procedure and sale in case of delinquency as provided for general municipal taxes. All laws applicable to the levy, collection, and enforcement of general municipal taxes shall be applicable to the assessment.
6. All money received by payment of the charge or assessment or from the sale of property at foreclosure sale shall be paid to the Chief Financial Officer who shall credit the same to the Stormwater Enterprise. (Ord. 23-03)
A. Liability of Others: Any person who engages in construction activities is declared to be totally responsible to those persons who may have been endangered or, in fact, is endangered, as a result of not having or not following a GEC Plan, CSWMP, or PCM Plan or following an incorrect GEC Plan, CSWMP, or PCM Plan.
B. Liability of Drainage Board Members: The Public Works Director acting for the City in good faith and without malice for the City in the discharge of their duties, shall not hereby render themselves personally liable, and they are hereby relieved from all personal liability for any damage that may accrue to persons or property as a result of any act required, or by reason of any act or omission related to the discharge of their duties. Any suit brought against the Public Works Director due to an act or omission performed by them in the discharge of their duties, shall be defended by the City to the final termination of the proceedings. (Ord. 23-03)
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