(A) Violations constitute a public nuisance; abatement; restoration. Any condition caused or allowed to exist in violation of any of the provisions of this chapter, constitutes a threat to the public health, safety and welfare, and is deemed and declared to be a public nuisance. This public nuisance may be summarily abated, and/or the property restored to its original condition, and/or enjoined or otherwise be compelled to cease and desist, by the authorized enforcement official, or by actions taken by the Town Attorney.
(1) Abatement procedure; costs; lien. The abatement of any public nuisance under this chapter shall follow the procedures as set forth in Chapter 8.28 of the Fairfax Town Code. The cost of the abatement and/or restoration of the property to its original condition shall be the responsibility of the owner of the property. The costs shall be a lien upon and against the property and shall continue in existence until it is paid. The lien shall be imposed and collected in accordance with the applicable provisions of state law and this code.
(2) Inspections and sampling; authority and procedure.
(a) The authorized enforcement official has the duty and the responsibility to inspect any and all locations for any violation of the provisions of this chapter. The authorized enforcement official may, within the limitations of applicable state and federal laws, enter any building or any premises at all reasonable times to inspect the same or any facilities, equipment, practices, or operations for any or all of the following situations, as determined by the authorized enforcement official:
1. Routine inspections to ensure implementation of BMPs and other requirements of this chapter;
2. Active or potential stormwater discharges;
3. Whenever there is reasonable cause to believe that there exists any condition which constitutes a violation of the provisions of this chapter or the Phase Il Stormwater Permit;
4. Actual violations of this chapter or the Phase II Stormwater Permit;
5. Whenever necessary to enforce any of the provisions of this chapter or the Phase II Stormwater Permit; or
6. To perform any duty imposed upon the official by this chapter.
(b) The authorized enforcement official must present proper credentials to, and obtain consent from the owner or occupant to enter. In the event the owner and/or occupant refuses entry, the official shall request assistance of the Town Attorney to obtain an administrative warrant for the premises, pursuant to the provisions of state law.
(c) The authorized enforcement official has the right to, and shall conduct, routine sampling and monitoring on or adjacent to the premises under review. The cost of the routine sampling and/or monitoring activities, including test reports and results, shall be borne by the local agency. The authorized enforcement official may, within the limitations of law, enter the premises at reasonable times to conduct sampling and monitoring operations, provided that the official presents proper credentials to, and obtains consent from the owner or occupant to enter. In the event the owner and/or occupant refuses entry, the official shall request assistance of the Town Attorney to obtain an administrative warrant for the premises, pursuant to the provisions of state law.
(d) Whenever the authorized enforcement official has reasonable cause to believe that the owner and/or occupant of a premises is engaged in an activity and/or operating a facility that is causing or contributing to stormwater pollution or contamination, illicit discharges and/or the discharge of non-stormwater or other unlawful material, to the storm drain system, the official may require the owner and/or occupant to conduct sampling and/or monitoring activities on the premises, and to furnish the test results and reports as the official may determine. The burden and cost of undertaking the sampling and monitoring activities, including test results and reports, shall be borne by the owner of the premises under review. The type and method of sampling and monitoring shall bear a reasonable relationship to the need for testing and monitoring and to the benefits to be obtained, as determined by the enforcement official.
(e) Whenever a condition is found to exist in violation of this chapter that presents an immediate and present danger to the public health, safety and welfare requiring immediate remedial action to prevent injury to persons or property, the authorized enforcement official shall take whatever reasonable and appropriate action is necessary to neutralize the danger, including, but not limited to entry upon private premises for inspection, sampling and monitoring and abatement.
(B) Violations; misdemeanors or infractions; punishment. The violation of any provision of this chapter, or failure to comply with any of the mandatory requirements of this chapter, shall constitute a misdemeanor, except that, notwithstanding any other provision of this chapter, any such violation of this chapter may, in the discretion of the enforcement authority, constitute an infraction. If convicted of a misdemeanor, a person shall be subject to payment of a fine, imprisonment, or both, not to exceed the limits set forth in Cal. Gov't Code § 36901. If convicted of an infraction, a person shall be subject to payment of a fine, not to exceed the limits set forth in Cal. Gov't Code § 36900. A person, firm, corporation or organization shall be deemed guilty of a separate offense for each and every day during any portion of which a violation of this chapter is committed, continued or allowed by the person, firm, corporation or organization, and shall be punishable accordingly.
(C) Violations; civil action for enforcement. The violation of any provision of this chapter, or the failure to comply with any of the requirements of this chapter, may be enforced by a civil action brought by the Town Attorney in any court having appropriate jurisdiction. In any such action, the town may seek any or all of the following remedies:
(1) A temporary or permanent injunction;
(2) Costs of investigation, inspection, sampling or monitoring activities concerning the violation and costs of suit;
(3) Costs of restoration of the premises from its condition resulting from the violations back to its original condition; and
(4) Compensatory damages including, but not limited to loss and/or destruction of water quality, wildlife, fish, aquatic habitat and other adverse environmental effects. Damages recovered under this division shall be paid to the town and shall be used exclusively for costs of sampling and monitoring, or establishing stormwater discharge pollution control systems, and of implementing and/or enforcing the provisions of this chapter.
(D) Violations; administrative enforcement action. In addition to any other enforcement powers and/or remedies provided in this chapter, an authorized enforcement official may issue an order to a person to cease and desist from the discharge, practice, operation or other activity causing or likely to cause a violation of this chapter. The order shall be directed to those persons in violation of the chapter stating clearly and concisely the nature of the violation, the requirements for compliance, a timetable for compliance, and such other remedial and/or preventive action as may be necessary. Upon the violator's failure to comply with the order, the town shall take further enforcement action as specified in this chapter, or in accordance with any other appropriate provision of local, state or federal law. At the discretion of the authorized enforcement official, orders to cease and desist may take the following form:
(1) Warning letters and orders to abate pollution;
(2) Warning letters with requirements to submit written reports; or
(3) Formal violations and legal action as described in this chapter and as authorized by Chapter 1.10 of the Town of Fairfax Municipal Code.
(E) Remedies not exclusive. The enumerated remedies provided in this chapter are in addition to and do not supersede or limit all other remedies, both civil and criminal. The remedies provided for herein shall be cumulative to, and not exclusive of, each other.
(F) Authority to arrest and issue citations.
(1) The authorized enforcement official shall have the authority to arrest or to cite any person who violates any provision of this chapter in the manner provided by the California Penal Code for the arrest or release on citation of misdemeanors or for citation of infractions and notice to appear, as prescribed by Cal. Penal Code Title 3, Part 2, Chapters 5, 5C, and 5D, including § 853.6, or as the same may be hereinafter amended.
(2) It is the intent of the Town Council that the immunities provided in Cal. Penal Code § 836.5 be applicable to public officers or employees acting within the course and scope of their employment pursuant to this chapter.
(Prior Code, § 8.26.030) (Ord. 623, passed - -1993; Am. Ord. 791, passed 6-3-2015)