The Director of Planning and Community Development ("Director") or an authorized designee is hereby designated to enforce the terms and provisions of this chapter as provided herein. As used herein, the term
PLANNING DIRECTOR or DIRECTOR
shall be inclusive of an authorized designee.
(A) Complaints regarding violations. Whenever the Director receives a complaint alleging a violation of this chapter or has reason to suspect that a violation is occurring, the Director shall investigate the complaint or suspicion and shall take whatever action is warranted in accordance with these enforcement provisions.
(B) Persons liable. The owner or occupant of any building, structure, or land, or part thereof, or other person who participates in, assists, directs, creates, or maintains any condition that is contrary to the terms of this chapter may be held responsible for the violation, suffer the penalties, and be subject to the remedies provided herein and at law.
(C) Right of entry. The Director may enter upon any premises at any reasonable time to inspect all buildings, structures, and premises within the jurisdiction of this chapter to determine compliance with the provisions of this chapter. All inspections shall be subject to the following standards and conditions:
(1) The Director shall furnish to the owner, tenant, or occupant of the building, structure, or premises sought to be inspected sufficient identification and information to verify that the person is a representative of the city and to identify the purpose of the inspection.
(2) If the owner, tenant, or occupant refuses to grant entry, the Director may obtain the assistance of law enforcement and/or the courts for securing entry.
(D) Procedures upon discovery of violations. If the Director determines that any provision of this chapter is being violated, he shall provide a written notice to correct to the persons responsible for the violation. However, if the Director determines that corrective action is required immediately, he may proceed with the appropriate action without first issuing a notice to correct, as provided in division (D)(2) below.
(1) Notice to correct.
(a) Except as provided in division (D)(2) below, upon determining that a violation of the terms of this chapter exists, the Director shall issue to the person or persons responsible for the violation a written notice to correct. The notice to correct shall be delivered by personal delivery, certified mail return receipt requested, or regular U.S. Mail. Delivery by mail shall be made to the owner of the property at the address of record at the Office of the Montgomery County Auditor, and the owner shall be deemed to have received notices mailed to that address. Delivery to any other person responsible for the violation may be made to the address of the property at issue. If delivery is made by mail, service shall be deemed to have been made two days after the notice is placed in the mail.
(b) The notice to correct shall include the following information:
1. The date of the notice;
2. The name, business address, and phone number of the person issuing the notice;
3. The name and address of the property owner and/or responsible party;
4. The nature of the violation and the applicable section(s) of this chapter;
5. The date the violation was observed;
6. The action necessary to correct the violation;
7. That if the violator does not correct the violation within ten days he shall be subject to a fine citation and the remedies provided in this section;
8. The schedule of fines that may be imposed if the violation is not timely corrected, and an advisement that each day the condition remains uncorrected after the time allowed constitutes a separate violation for which an additional fine may be imposed;
9. That, if applicable, the violator may petition for an appropriate development approval as provided in division (E) below;
10. That the violator may appeal the Director's determination that a violation exists as provided in division (F) below.
(c) 1. After service of a notice to correct, the violator shall have ten days to correct the condition. However, the Director may, in his discretion, extend the time for correction if such a request is made by the violator in writing and within the time originally allowed for correction. Such a request shall be submitted to the Director and shall identify a proposed date for completing the corrective action. If the Director denies the request, the deadline contained in the notice to correct remains in effect.
2. Upon correcting the violation, the violator shall notify the Director so that the Director may confirm that no further corrective action is required.
(d) If the violation is not timely corrected, the violator shall be subject to a fine citation and other remedies as provided herein.
(e) A person who receives a notice to correct may elect to file an application for any available development approval, such as a request for a variance or a special exception, seeking approval of the condition at issue. The person must notify the Director of the intent to file such an application within ten days after the date of service of the notice to correct. The appropriate application must then be filed within 14 days, or before the next application deadline, whichever is the greater time, unless additional time is allowed by the Director. A person who timely files such an application or petition shall diligently pursue the application or petition. While the application or petition is pending, additional enforcement action shall be stayed. If the application or petition is withdrawn, dismissed, or denied and the violation remains uncorrected, the violator shall be subject to additional enforcement, including issuance of a fine citation.
(f) Appeal of determination of violation.
1. The Director's determination that a violation exists may be appealed to the Board of Zoning Appeals. Such an appeal must be filed within ten days after service of the notice to correct and as provided in division (I) below.
2. While an appeal is pending, further enforcement action shall be stayed.
3. If the appeal is withdrawn, dismissed, or denied and the violation remains uncorrected, the violator shall have ten days from the withdrawal, dismissal or denial to correct the violation, unless additional time is allowed as provided in division (D)(1)(c) above. Failure to correct within this time shall subject the violator to a citation and all available remedies.
4. Failure to file an appeal within the time provided herein shall operate as a waiver of such an appeal. The waiver is limited to the determination of a violation, and does not preclude any available appeal of further action relating to the violation.
(2) Enforcement without prior written notice to correct. In cases where delay would prevent the effective enforcement of this section or would pose a danger to the public health, safety, or welfare, the Director may seek enforcement by invoking any penalties or remedies authorized herein or by law without first issuing a written notice to correct. Those remedies can include, but may not be limited to, a stop work order and/or a fine citation.
(E) Fine citation. If a violation identified in a notice to correct is not timely corrected, the Director may issue a fine citation to the violator. When a citation is issued, fines shall be imposed beginning the day the citation is issued and shall continue accruing daily thereafter, without further notice, until the condition is corrected. Each day a violation remains uncorrected after issuance of a citation results in an additional fine without any further notices to correct or citations.
(1) Service of the citation. A citation shall be delivered in the same manner as provided in division (D)(1)(a). If delivery made by mail, service shall be deemed to have been made two days after the citation is placed the mail.
(2) Content of citation. The citation shall contain the following information:
(a) The date of the citation;
(b) The name, business address, and phone number of the person issuing the citation;
(c) The address of the property at issue;
(d) The name and address of the property owner and/or other responsible party;
(e) The nature of the violation and the applicable section(s) of this chapter;
(f) The action necessary to correct the violation;
(g) The first date for which a fine is imposed;
(h) That each day the violation remains uncorrected constitutes a violation for which a separate fine will be assessed, without further notice or citation;
(i) The amount of the fine(s) imposed; and
(j) An advisement of the right to appeal the fine.
(3) Fine schedule.
(a) First occurrence of violation. The monetary fine for the first occurrence of a violation shall be $100 per day.
(b) Recurring violation(s). For any recurrence of violation within a 365-day period after correction of the first occurrence, the following fines shall apply for each day the recurrence remains uncorrected:
1. Second occurrence: $200.
2. Third occurrence: $400.
3. Fourth occurrence: $600.
4. Fifth occurrence: $1,000.
5. Each occurrence in excess of five: $2,500.
(c) Each day a violation remains uncorrected shall be a distinct and separate violation and subject to an additional fine, in the amounts provided above, without further notice or citation.
(d) Waiver or reduction of fines. In his discretion and for good cause, the Director may waive or reduce fines upon correction of a violation.
(4) Payment, adjudication, and appeal.
(a) A person to whom a citation is issued may elect to do one of the following:
1. Pay all fines due to the City Clerk-Treasurer within 30 days of the citation.
2. File an appeal with the Board of Zoning Appeals as provided in division (I) below. Such an appeal is limited to the amount of the fine assessed. While the appeal is pending, further enforcement action and further fines shall be stayed.
3. Stand trial for the citation by notifying the Director of such intent, in writing, within ten days after issuance of the citation.
a. Upon receipt of a notice of intention to stand trial, additional fines shall be stayed pending resolution of the alleged violation.
b. Upon receipt of a notice of intention to stand trial, the Director shall initiate appropriate action to enforce the citation in court.
c. If the court determines that the condition is not a violation or if the case is dismissed, no fines are owed. If the court affirms the alleged violation, fines resume accruing the day following the court decision or dismissal.
(b) If the violator neither timely pays all amounts due under a citation, files an appeal with the BZA, nor elects to stand trial, the Director may commence an enforcement action in court.
(5) Other remedies reserved.
(a) Seeking a civil penalty as authorized in this section does not preclude the Zoning Director, the city, the Plan Commission, or the Board of Zoning Appeals from seeking alternative and additional relief from a court of competent jurisdiction or as otherwise provided by law or by this section.
(B) Pursuant to IC 36-1-6-2, if a condition exists on real property in violation of this chapter, the Director, or other representatives or contractors of the city, may enter onto the properly and take the appropriate action to bring the property into compliance. However, before such action may be taken, the Director shall provide notice to all persons holding a substantial interest in the property of his intention and shall provide such persons a reasonable time of at least ten days to bring the properly into compliance. If the city is required to take action under this section, the expenses incurred by the city to obtain compliance may be collected from the owner or other responsible party and shall constitute a lien against the property.
(F) Stop work order.
(1) The Director may issue a stop work order requiring the immediate suspension of land improvements whenever any of the following circumstances exist:
(a) A site is being improved without a building permit, certificate of occupancy, improvement location permit, or any other permit required by this chapter; or
(b) A site is being improved in violation of:
1. The terms, conditions, or provisions of this chapter;
2. The terms, conditions, or commitments of a variance, special exception, development plan, planned unit development, or zone map amendment; or
3. Any other development approval granted under this chapter.
(2) The following procedures apply to the Director's issuance of a stop work order:
(a) The stop work order shall:
1. Be posted on the property in a conspicuous place or personally delivered to the owner, tenant, occupant, or person in charge;
2. Identify the violation(s) on which it is based and the corrective action required;
3. Identify the conditions under which construction or other activity may resume; and
4. Inform the recipient of his right to appeal the order.
(b) The recipient of a stop work order may appeal the decision of the Director to the Board of Zoning Appeals in accordance with division (I) below.
(c) The Director may bring an action in court to enforce the provisions of a stop work order.
(d) Violation of a stop work order shall also be considered a violation of this chapter and shall be subject to enforcement and penalties as contained herein.
(G) Revocation of prior development approval.
(1) Authority.
(a) The Director may, in accordance with this section, seek the revocation of any development approval previously granted either administratively or by any city board, commission, or committee under this chapter, including but not limited to any improvement location permit, certificate of occupancy, sign permit, development plan approval, variance, or special exception if:
1. The approval was obtained without adhering, to the applicable procedures of this chapter, including but not limited to:
a. Failure to properly notify other property owners as required; or
b. Failure to demonstrate consent of property owners as required;
2. The approval was obtained on the basis of factual errors in the application or supporting materials;
3. The approval was obtained on the basis of falsified information; or
4. The recipient of the approval fails to develop or maintain the property in accordance with the application and plans submitted, the requirements of this chapter, or any additional requirements imposed in connection with the approval.
(b) Any development approval granted administratively, rather than by the Plan Commission or Board of Zoning Appeals, may be revoked by the Zoning Director. Any development approval granted by the Plan Commission or Board of Zoning Appeals can be revoked only by whichever of those bodies granted the approval.
(2) Procedure for revocation by approving body.
(a) Notice of intent to revoke.
1. If the Director intends to seek the revocation of an approval previously granted by the Board of Zoning Appeals or the Plan Commission, he shall deliver to the holder of the approval a written notice of intent to revoke. The notice of intent to revoke shall identify the reason(s) , for the revocation and shall identify the date and time at which the Board or Commission will decide the issue, as provided herein.
2. The notice of intent to revoke shall be delivered by personal delivery, certified mail return receipt requested, or regular U.S. Mail to the holder of the permit or approval at issue. If delivery is made by mail, service shall be deemed to have been made two days after the notice is placed in the mail.
(b) Hearing. If the approval sought to be revoked originally required a public hearing, then the appropriate Board or Commission shall conduct a public hearing on the proposed revocation. If the approval did not require a public hearing, a public hearing is not required on the revocation. The meeting or public hearing of the appropriate Board or Commission shall be held not less than 30 days after delivery of the notice of intent to revoke. Notice of the meeting or public hearing shall be provided to the public and/or surrounding property owners in the same manner as would be required for an original petition for the approval at issue.
(c) Decision. At the close of its consideration of the proposed revocation, the Board or Commission shall render its decision. The Board or Commission shall also enter written findings of fact supporting the decision. The Director shall provide a copy of the decision to the approval holder within ten days of the decision.
(3) Procedure for administrative revocation. The Director may revoke any approval granted administratively, as set forth above, as follows:
(a) If the Director determines a development approval which was granted administratively should be revoked, he shall deliver to the holder of the approval or permit a written notice of the revocation. The notice shall identify the reason(s) for the revocation and shall advise the recipient of the right to seek review of the decision by submitting an appeal to the Board of Zoning Appeals as provided in division (I) below. This notice shall be delivered in the same manner as provided in division (G)(2)(a) above.
(4) Result of revocation. No person may continue to make use of land or buildings in the manner authorized by any approval or permit after the approval or permit has been revoked as provided herein.
(5) Records. A record of all written correspondence, notices, and decisions concerning the revocation of any prior approval shall be kept with the original development file.
(H) Common nuisance. Pursuant to IC 36-7-4-1012, any structure, land, or premises found to be in violation of this chapter is hereby declared to be a common nuisance. In addition to any other fine or civil penalty, any owner or possessor of the structure, land, or premises may be liable for maintaining a common nuisance.
(I) Appeals of Director decisions.
(1) Except as may be otherwise provided in this section all decisions of the Director may be appealed to the Board of Zoning Appeals in accordance with the procedures and standards for appeals of administrative decisions.
(2) Decisions of any board or commission acting under this section may be appealed by a request for judicial review under IC 36-7-4-1600 et seq.
(J) Costs and legal fees. The violator, or other person or entity subject to an enforcement action as provided herein, shall be liable for the city's costs of enforcement, including any court costs and reasonable attorney fees.
(K) Private remedies reserved. The terms of this section shall not be interpreted to prevent any person entitled to relief in law or equity due to a violation of this chapter from bringing an appropriate action to secure relief.
(Ord. 11-2013, passed 4-8-13)