(A) Remedies and enforcement. Remedies and enforcement of the provisions of the Zoning Code are set forth in IC 36-7-4-1000, “1000 SERIES REMEDIES AND ENFORCEMENT.” All remedies set herein may be used in combination or in the alternative.
(B) Violations as common nuisance. Any structure erected, raised, or converted, or land, or land use, or premises used, in violation of this chapter of the code, is a common nuisance and the owner or possessor of the structure, land, or premises is liable for maintaining a common nuisance.
(C) Any person or corporation in violation of this chapter may be punished subject to the provisions of IC 36-1-3-8, specifically:
(1) A fine of not more than $2,500 for a first violation of the ordinance; and
(2) A fine of not more than $7,500 for a second or subsequent violation of the ordinance.
(D) Fines. Any person who uses property in violation of this section shall be deemed to have committed a civil zoning violation, and the staff, or representative of the Fayette County Sheriffs Department, Connersville City Police Department, or other code enforcement official for Fayette County, Indiana or the City of Connersville may issue a “notice of violation” or separate civil zoning violation subject to an additional citation and fine in the amount prescribed in the following table. A person who commits a first violation shall receive a “notice of violation”. If the violation is not corrected within the time frame specified by the “notice of violation” then the following fine schedule shall apply.
Schedule of Fines | |
Violation | Fine |
Schedule of Fines | |
Violation | Fine |
Notice of Violation | No fine |
First violation | $ 50 |
Second violation | $100 |
Third violation | $150 |
Fourth violation | $200 |
Each subsequent violation | $300 |
In no event shall the total monetary fine for each civil zoning violation exceed $2,500. All fines prescribed by this chapter for civil zoning violations shall be paid in accordance with the provisions of Indiana law and the ordinances of Fayette County.
(1) (a) The staff may issue a civil zoning “notice of violation” or ticket/citation to a person who commits a civil zoning violation to the legal owner, the contract vendee or any person or entity with a possessory interest in the real estate upon which the violation occurs. The “notice of violation” or ticket/citation may be served by personal service or by certified mail and shall serve as notice to a person that he or she has committed a civil zoning violation. If determined appropriate the Executive Director has the authority to forgo issuing a ticket/citation in favor of proceeding directly to the remedies allowed under divisions (E), (F) and (G) of this section of the Area Zoning Code. Upon failure to abate the nuisance within the time allotted in the “notice of violation” staff may forward those violations within the corporate boundaries of the City of Connersville to the City of Connersville “code violation staff” for issuance of citations/tickets and enforcement.
(b) All fines prescribed by this section for remedies and penalties of the Area Zoning Code shall be paid to Area Plan Commission staff, who shall render to the person making the payment a receipt stating the amount and purpose for which the fine has been paid, a duplicate of which shall be made a part of the records of the Area Plan Commission. Accompanying the fines shall also be restitution for any associated postage costs associated with the enforcement action. All fines and postage fees received shall be deposited with the Fayette County Auditor for deposit in the county general fund.
(2) No ticket/citation shall be issued for the first offense unless the person who commits a civil zoning violation, or the legal owner, the contract vendee, tenant, or any person or entity with a possessory interesting in the real estate upon which the violation occurs has been issued a “notice of violation”. The compliance deadline shall not be less than ten days for illegal nonconforming businesses, construction without an improvement location permit or the use of or installation of signs in violation of the provisions of the Area Zoning Code and not less than 30 days for other violations before the issuance of the ticket/violation to correct the violation.
(3) A person who receives a “notice of violation” or a ticket/citation may file a formal appeal of the Executive Director’s order or zoning code interpretation to the Board of Zoning Appeals, or file a petition for a variance, special exception conditional use, rezoning or other means provided by the Area Zoning Code to correct the violation. A person who elects to file an appeal or petition shall indicate this intent on the “notice of violation” or ticket/citation and return it to the Area Plan Commission staff within ten days, after issuance of the “notice of violation” or ticket/citation to file the appeal of petition. A person who files the petition within said time period shall be responsible for completing all required applications and petition paper work and shall be responsible for all public notice costs with the hearing(s) to be held at the next available Area Plan Commission and Board of Zoning Code. If the appeal or petition is denied, withdrawn, or dismissed for want of prosecution, the Board of Zoning Appeals shall establish a time limit for correction of the violation, not to exceed 30 days. No fines shall be assessed during the correction period. After the expiration of the correction period, if the civil zoning violation continues at the real estate, then enforcement proceedings authorized by this section will be commenced. A person who receives a citation under this section and elects to file a petition shall not be entitled to a stay of additional monetary fines that accrue after the expiration of any correction period.
(4) A person who receives a ticket/citation may elect to pay the fine and any associated court costs to the appropriate office, or to stand trial for the offense by indicating on the citation his or her intent to stand trial and returning a copy of the ticket/citation to the issuing agency.
(5) If a person who receives a ticket/citation fails to pay the assessed fine by the date of payment set forth in the ticket/citation and fails to notice of his or her intention to stand trial as prescribed in division (D)(4) above, the Plan Commission Attorney may file enforcement proceedings as provided by applicable laws and seek penalties as prescribed in this chapter.
(6) A person adjudged to have committed a civil zoning violation is liable for the court costs and fees. No cost shall be assessed against the enforcement agency in any such action.
(7) Seeking a civil penalty as authorized by this chapter does not preclude the county from seeking alternative relief from the court in the same action, or from seeking injunctive relief or any other remedy in a separate action for the enforcement of this chapter.
(8) A change of venue from Fayette County shall not be granted in such a case, as provided in IC 36-7-4-1014.
(E) Unpaid fines and court costs and attorney fees incurred to enforce chapter to become lien against real estate.
(1) Any fine and court costs not paid within 30 days after it is due shall result in said fine and court costs along with the amount of any attorney fees incurred to enforce this chapter to become a lien
against the real property on which the violation of this chapter occurred.
(2) The lien attaches to the real property when notice of the lien is recorded in the Office of the Fayette County Recorder. The lien is superior to all other liens except liens for taxes.
(3) The lien shall be in an amount that does not exceed:
(a) $2,500 for real property that:
1. Contains one or more occupied or unoccupied single or double family dwellings or the appurtenances or additions to those dwellings; or
2. Is unimproved;
(b) $10,000 for all other real property not described in division (E)(3)(a).
(4) The amount of the lien shall be placed on the tax duplicate by the Fayette County Auditor. The total amount, including any accrued interest, shall be collected in the same manner as delinquent taxes are collected and shall be disbursed to the General Fund of the County.
(F) Violations on private property costs of remediation billed to owner and if not paid to become a lien against the real estate.
(1) If a condition violating this section exists on real property, officers and employees of Fayette County or a contractor of the county may enter onto that real property and take appropriate action to bring the real property into compliance with this section. However, before action to bring compliance may be taken, all persons holding a substantial interest in the property must be given reasonable opportunity of at least ten days but not more than 60 days to bring the property into compliance. If the county takes action to bring compliance, the expenses incurred by the county to bring compliance constitute a lien against the real property.
(2) The lien attaches when notice of the lien is recorded in the Office of the Fayette County Recorder. The lien is superior to all other liens except for taxes, in an amount that does not exceed:
(a) $2,500 for real property that:
1. Contains one or more occupied or unoccupied single or double family dwellings or the appurtenances or additions to those dwellings; or
2. Is unimproved;
(b) $10,000 for all other real property not described in division (F)(2)(a).
(3) The county may issue a bill to the owner of the real property for the costs incurred by the county in bringing the property into compliance with this section, including administrative costs and removal costs.
(4) A bill issued under the above division (F)(3) is delinquent if the owner of the property fails to pay the bill within 30 days after the date of issuance of the bill.
(5) The amount of the lien shall be placed on the tax duplicate by the Fayette County Auditor. The total amount, including any accrued interest, shall be collected in the same manner as delinquent taxes are collected and shall be disbursed to the General Fund of the county.
(G) Repair, maintenance and nuisance abatement and related remedies.
(1) Enforcement. The Fayette County Area Planning Commission (“APC”) may, from their approved budget, appoint, hire or contract and individual who shall be in charge of enforcing the provisions of this section, which individual may hereinafter be referred to as the Area Planning Commission Inspection and Enforcement Officer (“IEO”).
(2) Powers. The IEO is granted, and may exercise all powers granted the inspector by way of the Area Zoning Code, Area Subdivision Control Code and Building Codes as adopted by Fayette County, Indiana and the City of Connersville.
(3) Purpose. This provision is adopted to fairly deal with the prevention and/or elimination of any public nuisance, the definition of which (for purposes hereof) shall include the following:
(a) An annoyance that effects the sensibilities of a person of ordinary health or average sensibility;
(b) The definition as set forth in the § 98.01, of the city’s Code of Ordinances, as that Code exists and may be, and is, from time to time amended (the provisions of which section are incorporated herein by reference);
(c) Indiana Code 32-30-6-6, as that Code exists and may be, and is, from time to time amended (the provisions of which Code are incorporated herein by reference); and
(d) The various definitions set forth in applicable Indiana case law.
(4) Orders. The IEO may issue an order requiring compliance with all zoning, subdivision, building codes adopted by Fayette County, Indiana and the City of Connersville and other nuisance ordinances adopted by Fayette County, Indiana under which the IEO is authorized to enforce.
(5) Service of orders. An order issued under this section shall be served in person and/or certified mail, as the IEO may choose at the IEO’s discretion, on the tenant, if applicable, and the owner, or owners (if more than one owners is of record), as the case may be, of the dwelling, excavation, building, sewer or structure. The said order shall inform the tenant(s) and the owner(s) so served what action is required of him, her, or them, as the case may be, and advise that, if such action is not taken and the matter is not resolved in accordance with the order within 30 days of the date of the order, then suit may be filed by the APC for compensatory damages equal to sums necessary to effect a cure and/or to have another entity or entities, as the case may be, to effect the required action, as the case may be, and/or for injunctive relief for abatement of the subject nuisance, with the costs for the remedy sought in either, or both event(s), to be assessed against the owner and with damages adjusted against those so served, jointly and severally, and including, in all events, APC’s trial preparation and presentation expenses and the APC’s legal costs in asserting its remedy(ies). The order shall also give notice to those served of the right to appeal and judicial review of the IEO’s order in accordance with the applicable provisions below.
(6) Appeal and review of an IEO order.
(a) Any person or entity aggrieved by an order of the IEO issued pursuant to this section may, not more than ten days after receipt of service of the order, file with the appropriate entity an appeal seeking a review of the order.
(b) The applicable court shall hear the appeal. The court’s decision is final.
(7) Appeal bonds. If the person and/or entity appealing for review of an IEO order to the circuit or superior court he/she/it shall file with the subject court a bond in an amount to be fixed by the court with sureties to be approved by the judge of the court, conditioned on the payment of all costs for the review, including APC’s legal costs, court costs and damages caused by the time delay caused by the appeal, if the person and/or entity fails to sustain the appeal or the appeal is dismissed.
(Ord. 3095, passed 2-15-93; Am. Ord. 4207, passed 4-15-02; Am. Ord. 4883, passed 3-19-07; Am. Ord. 4969, passed 5-5-08)