(a) Generally. This article may be enforced by any one, all, or a combination of the remedies authorized and prescribed by G.S. 160A-175.
(b) Criminal penalties. Any person who knowingly or willfully violates any provision of this article, or rule or order adopted or issued pursuant to this article, 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 which may include a fine not to exceed $5,000.00 as provided in G.S. 113A-64.
(1) Failure to receive a land disturbance permit, as required by this article, for any form of land disturbance prior to commencement of said land disturbance shall subject both the owner of the property and any contractor engaged for the purpose of performing the work to a fine not to exceed $5,000.00. If the illegal land disturbance meets all requirements of this article, a permit shall be issued upon payment of the fine and submittal of a completed application, including erosion control plan, if required, and fee. If the illegal land disturbance does not meet said requirements, the disturbed property shall either be restored or be brought into compliance prior to receipt of the permit.
(2) Failure to comply with the provisions of a land disturbance permit and the representations submitted as part of the application for the permit, including any erosion control plan, shall be cause for the erosion control officer to place a stop order on the work for which the permit was issued until such time as the land disturbance is altered to comply or until a revised land disturbance permit is approved. If the land disturbance is not brought into conformance or a revised land disturbance permit meeting the standards of this article, the owner of the property and the contractor shall each be subject to a fine not to exceed $5,000.00, assessed from the date of the violation.
(3) Any property owner or contractor previously found to be in violation of this article who is found in violation again shall be considered a repeat offender and shall be subject to a fine not to exceed $5,000.00.
(c) Civil penalties.
(1) Civil penalty for a violation. Any person who violates any of the provisions of this section, or rule or order adopted or issued pursuant to this article, 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 amount that the town may assess per violation is $5,000.00. A civil penalty may be assessed from the date of violation. Each day of a continuing violation shall constitute a separate violation.
(2) Civil penalty assessment factors. The erosion control officer shall determine the amount of the civil penalty based upon the following factors:
a. The degree and extent of harm caused by the violation;
b. The cost of rectifying the damage;
c. The amount of money the violator saved by noncompliance;
d. Whether the violation was committed willfully; and
e. The prior record of the violator in complying or failing to comply with this article.
(3) Notice of civil penalty assessment. The erosion control officer shall provide notice of the civil penalty amount and basis for assessment to the person assessed. 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 or contest the assessment, by written demand for a hearing.
(4) Hearing. A hearing on a civil penalty shall be conducted by the town council within 31 days after the date of the written demand for the hearing. The decision of the town council shall be final.
(5) Appeal of final decision. Appeal of the final decision of the town council shall be to the superior court of the county. Such appeals must be made within 30 days of the final decision of the town council.
(6) Collection. If payment is not received within 30 days after it is due, the town may institute a civil action to recover the amount of the assessment. The civil action may be brought in the superior court of the county or the location of the violator's residence or principal place of business. Such civil actions must be filed within three years of the date the assessment is 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.
(7) Credit of civil penalties. Civil penalties collected pursuant to this article shall be credited to the civil penalty and forfeiture fund. Case law indicates that penalties assessed by local governments pursuant to a state delegation must be remitted to the civil penalty and forfeiture fund for the benefit of the local school boards pursuant to the state constitution's provision on state penalties, fines, and forfeitures.
(d) Court jurisdiction. Any provision of this section that makes unlawful a condition existing upon or use made of any property may be enforced by injunction and order of abatement, and the general court of justice shall have jurisdiction to issue such orders. When a violation of such a provision occurs, the town may apply to the appropriate division of the general court of justice for a mandatory or prohibitory injunction and order of abatement commanding the defendant to correct the unlawful condition upon or cease the unlawful use of the property. The action shall be governed in all respects by the laws and rules governing civil proceedings, including the rules of civil procedure in general and rule 65 in particular. In addition to an injunction, the court may enter an order of abatement as a part of the judgement in the cause. An order of abatement may direct that the property shall be restored to its original condition prior to disturbance, or that any other action be taken that is necessary to bring the property into compliance with this policy or such ordinance. If the defendant fails or refuses to comply with an injunction or with an order of abatement within the time allowed by the court, such defendant may be cited for contempt, and the town may execute the order of abatement. The town shall have a lien on the property for the cost of executing an order of abatement in the nature of mechanic's and materialman's lien. The defendant may secure cancellation of an order of abatement by paying all costs to the town of the proceedings and posting a bond for compliance with the order. The bond shall be given with sureties approved by the clerk of the superior court in an amount approved by the judge before whom the matter is heard and shall be conditioned on the defendant's full compliance with the terms of the order of abatement within a time fixed by the judge. Cancellation of an order of abatement shall not suspend or cancel an injunction issued in conjunction therewith.
(e) Violations. Except as otherwise specifically provided, each day's continuing violation of any provision of this article shall be a separate and distinct offense.
(Code 1989, § 96.999; Ord. of 6-12-2007; Ord. of 5-8-2018)