(A) Any person who violates any of the provisions of this chapter, or rules or orders 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 for a violation, other than a stop-work order issued under G.S. 113A-65.1, is $5,000 per day. The maximum civil penalty for a violation of a stop-work order 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 subsection 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 subsection for all violations associated with the land-disturbing activity for which the erosion and sedimentation control plan is required is $25,000. No penalty shall be assessed until the person alleged to be in violation has been notified of the violation as provided in section 9-8-19(C). A civil penalty may be assessed from the date of the violation. Refusal to accept the notice or failure to notify the City Engineer of a change of address shall not relieve the violator’s obligation to comply with this chapter or to pay such penalty. A person may also be assessed a one-time civil penalty of up to $5,000 for the day the violation is first detected.
(Ord. No. 00-155, §§ 8–10, passed 12-14-2000)
(B) The person responsible for the violation of this chapter shall be subject to a civil penalty in the amount of $100 to $5,000 per day maximum for the first offense, $250 to $5,000 per day maximum for the second offense during the life of the project, and $5,000 per day maximum for the third and subsequent offenses for the life of the project. The offenses shall be considered on a site-by-site basis. The penalty shall be established by the City Engineer, depending on the existence of aggravating and/or mitigating circumstances surrounding the violation. Violations of this type may include but are not limited to the following:
(1) Grading without a permit issued by the city;
(2) Grading beyond the limits of an existing grading permit without approval of an amended grading permit;
(3) Failure to properly install or maintain erosion control measures in accordance with the approved plan so as to prevent off-site sedimentation;
(4) Failure to retain sediment from leaving a land-disturbing activity, in accordance with the approved plan or other terms, as required by this chapter;
(5) Failure to restore off-site areas affected by sedimentation during the time limitation established in a notice of violation;
(6) Any other violation of this chapter which resulted in off-site sedimentation and, in the discretion of the City Engineer, warrants an assessment of a civil penalty;
(7) Failure to provide an angle on graded slopes sufficient to retain vegetative cover or other adequate erosion control devices or structures or failure to plant or otherwise provide with ground cover, devices or structures sufficient to restrain erosion within 21 calendar days of completion of any phase of grading on slopes left exposed;
(8) Failure to provide a ground cover sufficient to prevent erosion within 90 calendar days, following completion of construction or development;
(9) Failure to submit to the office of the City Engineer for approval an acceptable revised erosion and sedimentation control plan after being notified by the City Engineer of the need to do so;
(10) Failure to retain a buffer zone of sufficient width along a lake or natural watercourse to confine visible siltation within the 25% of the buffer zone nearest the land-disturbing activity;
(11) Failure to schedule and conduct a preconstruction meeting prior to any land-disturbing activity, as required on the approved plan; and/or
(12) Any other action that constituted a violation of this chapter.
(Ord. No. 00-155, § 11, passed 12-14-2000; Ord. No. 06-50, § 10, passed 6-8-2006)
(C) In determining the amount of the civil penalty, the City Engineer shall consider the following factors: the degree and extent of harm caused by the violation; the cost of rectifying the damage; whether the violator saved money by noncompliance; whether the violation was committed willfully after being informed of the potential violation; and the prior record of the violator in complying or failing to comply with this chapter. The City Engineer is authorized to reduce the amount of the per diem penalty set out in subsection (B) above to take into account any relevant mitigating factors.
(Ord. No. 06-50, § 11, passed 6-8-2006)
(D) Notwithstanding any other provision of this chapter, no required time period need be given for compliance for failure to submit an erosion control plan and land-disturbing permit for greater than one acre before a land-disturbing activity occurs and the penalty for the commencement of the land-disturbing activity without submittal of such plan and permit shall be a minimum of $500 and a maximum of $5,000, if warranted, for the land-disturbing activity in question.
(Ord. No. 06-50, § 12, passed 6-8-2006)
(E) Any person who fails to protect adjacent properties from pollutants shall be subject to a civil action as provided in section 9-8-21. Civil penalties for pollutants leaving the construction site may be assessed based on those factors listed in subsection (C) of this section.
(Ord. No. 06-50, § 13, passed 6-8-2006)
(F) The City Engineer shall determine the amount of the civil penalty and shall notify the person who is assessed the civil penalty of the amount of the penalty and the reason for assessing the penalty. The notice of assessment shall be served by any means authorized under G.S. 1A-1, Rule 4 and shall direct the violator to either pay the assessment, request a remission of the amount of the assessment as specified in subsection (G), or contest the assessment as specified in subsection (H). If a violator does not pay a civil penalty assessed by the City Engineer within 30 days after it is due, request a remission as provided in subsection (G), or does not request a hearing as provided in subsection (H), the City Engineer shall request the City Attorney to institute a civil action to recover the amount of the assessment. The civil action may be brought in Pitt County Superior Court or in the Superior Court for the county where the violator’s residence or principal place of business is located.
(G) A request for remission of a civil penalty imposed under G.S. 113A-64 may be filed with the Director of Engineering within 30 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. The following factors shall be considered in determining whether a civil penalty remission request will be approved:
(1) 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.
(2) Whether the petitioner promptly abated continuing environmental damage resulting from the violation.
(3) Whether the violation was inadvertent or a result of an accident.
(4) Whether the petitioner had been assessed civil penalties for any previous violations.
(5) Whether payment of the civil penalty will prevent payment for necessary remedial actions or would otherwise create a significant financial hardship.
(6) 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.
(H) A violator may contest the assessment of a civil penalty by submitting a written request for a review of the assessment by the City Engineer to the Director of Engineering within 15 days after receipt of the notice of assessment. Upon receipt of the written request, the City Engineer shall confer with the Director of Engineering concerning the civil penalty; and after the conference, the Director of Engineering shall notify the violator within ten days after receipt of the written request for a review whether the penalty has been upheld or modified. If the violator is not satisfied with the action of the Director of Engineering, the violator may further contest the assessment by submitting a written demand for a public hearing before the Board of Adjustment to the Director of Engineering and the Planning and Development Services Director within 30 days after receipt of the initial notice of assessment from the City Engineer. Appeals requests to the Board of Adjustment shall be made pursuant to Title 9, Article S of the city code. An appeal from the decision of the Board of Adjustment shall be to the Superior Court of Pitt County.
(I) A civil action to recover the amount of the assessment must be filed within three years of the date the assessment was due. An assessment that is not contested is due when the violator is served with a notice of assessment. An assessment that is contested is due at the conclusion of the administrative and judicial review of the assessment.
(J) Civil penalties collected pursuant to this chapter shall be credited to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2. Penalties collected by the city 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 City for the prior fiscal year.
(Ord. No. 06-50, § 14, passed 6-8-2006)
(K) Any person who knowingly or willfully violates any provisions of this chapter 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 and may be subject to a fine not to exceed $5,000 in accordance with G.S. 113A-64.
(L) A violation of this chapter that is not knowing or not willful shall not constitute a misdemeanor or infraction punishable under North Carolina G.S. 14-4, but instead shall be subject to the civil penalties provided in this section.
(Ord. No. 98-7, passed 1-8-1998; Ord. No. 99-119, § 17, passed 9-9-1999; Ord. 19-045, § 1, passed 9- 12-2019; Ord. No. 23-040, § 1, passed 5-11-2023)