(A) Remedies not limited. The remedies provided herein are not exclusive; may be exercised singly, simultaneously or cumulatively; may be combined with any other remedies authorized under the law; and may be exercised in any order.
(B) Notice of violation and meeting with the City of Locust.
(1) Content of notice.
(a) Except in emergencies, as described in division (K) below, upon the City of Locust’s determination that a violation has occurred, the City of Locust shall provide to each person against whom remedial action or penalties may be pursued, notice that describes:
1. The location of the property and the nature of the violation;
2. A general description of the remedies and penalties that may be incurred;
3. The action(s) needed to correct the violation, which shall include a requirement to restore areas affected by the violator’s discharge(s) to the pre-violation condition;
4. The time limit, if required, by which corrective actions must occur;
5. How to provide explanatory or additional information to the City of Locust and a contact person with whom the violation can be discussed; and
6. How to request a meeting with the City of Locust for certain violations as described in § 51.08(B)(3)below.
(b) The notice shall also require the violator to provide written notification, explaining actions taken to correct the violation and to prevent future violations. Only one such notice shall be required for each violator, regardless of the number of remedies or penalties that are pursued, or the timing of their institution. In addition, no time period for compliance need be given for obstructing, hampering or interfering with an authorized representative while in the process of carrying out duties under this chapter.
(c) The notice shall further advise the violator that, should the violator fail to remediate or restore the affected area(s) within the established deadline, the restoration work may be done by the City of Locust or a contractor designated by the City of Locust pursuant to § 51.08(J) below, and the expense thereof shall be charged to the violator.
(2) Service. The notice may be served by mail, hand delivery, verbally, or by any means authorized under G.S. § 1 A-l, Rule 4 of the North Carolina Rules of Civil Procedure. Refusal to accept the notice shall not relieve the violator’s obligation to comply with this chapter.
(3) Meeting with the City of Locust. If the violator makes a timely request for a meeting with the City of Locust during the time period set forth in the notice, the meeting shall be scheduled at a time, determined at the discretion of the City of Locust, prior to imposing a civil penalty, compliance order, or cease and desist order; or prior to withholding an inspection, permit, certificate of occupancy or other approval. The violator shall have the opportunity to present any information relevant to the violation or proposed remedy or penalty at the meeting, in writing or orally.
(C) Civil penalties.
(1) Any person who allows, acts in concert, participates, directs or assists, directly or indirectly, in the creation of a violation of this chapter is subject to a civil penalty. A civil penalty may be assessed from the date the violation first occurs.
(2) The maximum civil penalty for each violation of this chapter is $5,000. Each day of violation shall constitute a separate violation.
(3) No penalty shall be assessed until the person alleged to be in violation has been served notice of the violation as described above in § 51.08(B). Refusal to accept the notice shall not relieve the violator of the obligation to pay such penalty.
(4) Penalties may be assessed concurrently, with a notice of violation for any of the following:
(a) Obstructing, hampering or interfering with an authorized city representative who is in the process of carrying out official duties under this chapter;
(b) A repeated violation for which a notice of violation was previously given to the person responsible for the violation; or
(c) Willful violation of this chapter.
(5) In determining the amount of a civil penalty, the City of Locust shall consider any relevant mitigating and aggravating factors, including but not limited to, the following:
(a) Degree and extent of harm caused by the violation;
(b) Cost of rectifying the damage;
(c) Amount of money saved through noncompliance;
(d) Whether the violator took reasonable measures to comply with this chapter;
(e) Knowledge of the requirements by the violator and/or reasonable opportunity or obligation to obtain such knowledge;
(f) Whether the violator voluntarily took reasonable measures to restore any areas damaged by the violation;
(g) Whether the violation was committed willfully;
(h) Whether the violator reported the violation to an appropriate authority;
(i) Technical and economic reasonableness of reducing or eliminating the discharge; and
(j) Prior record of the violator in complying or failing to comply with this chapter or any other water pollution control ordinance or regulation.
(6) The City of Locust shall determine the amount of the civil penalty to be assessed under this section, shall make written demand for payment upon the person in violation, and shall set forth in detail a description of the violation for which the penalty was imposed. Notice of the assessment shall be by registered or certified mail or other means reasonably calculated to give adequate notice. If a violator does not pay a civil penalty assessed by the City of Locust within 30 days after it is due, or does not request a hearing as provided in § 51.09, the City of Locust shall request the City Attorney to institute a civil action to recover the amount of the assessment. The civil action shall be brought in Stanly/Cabarrus County Superior Court or in any other court of competent jurisdiction. Such civil actions must be filed within three years of the date the notice of assessment was served on the violator.
(7) 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.
(8) Civil penalties collected pursuant to this chapter shall be credited to the city’s general fund as a nontax revenue.
(9) A violation of this chapter shall not constitute a misdemeanor or infraction punishable under G.S. § 14-4, but instead shall be subject to the civil penalties fixed by this section.
(D) Cost recovery.
(1) The City of Locust may also recover from the violator:
(a) Costs to restore damaged property based on restoration costs, which include, but are not limited to, cleanup costs, devaluation of the property, value of animal and plant life damaged, and city administrative costs; and
(b) Compensation for damage to or destruction of the stormwater system.
(2) In no case shall the maximum penalty per day exceed the amount as specified above in § 51.08(C)(2).
(E) Compliance agreement. The City of Locust may enter into compliance agreements, assurances of voluntary compliance, or other similar documents establishing an agreement with the person responsible for the noncompliance. Such agreements will include specific actions to be taken by the person in violation to correct the noncompliance within a time period specified by the agreement. Compliance agreements shall have the same force and effect as compliance orders issued pursuant to § 51.08
(F) below.
(F) Compliance order. When the City of Locust finds that any person has violated or continues to violate any section of this chapter, an order may be issued to the violator directing that person to do one, or a combination, of the following:
(1) Comply with the sections of this chapter in accordance with a time schedule set forth in the order;
(2) Take appropriate remedial or preventive actions for a continuing or threatened violation of any section of this chapter, including installation and proper operation of adequate structures/devices and/or implementation of procedures and management practices;
(3) Pay a civil penalty for violating any section of this chapter.
(G) Cease and desist order. Cease and desist orders may be issued as follows:
(1) If the City of Locust finds that any person has violated or continues to violate any section of this chapter, an order issued pursuant to this chapter, or any other provision of applicable law, the City of Locust may issue an order requiring that person to cease and desist all such violations, and direct that person to perform any one or more of the following:
(a) Comply immediately with all sections of this chapter, an order issued pursuant to this chapter, or other applicable law;
(b) Take appropriate remedial or preventive actions for a continuing or threatened violation of any section of this chapter, a compliance agreement issued pursuant to this chapter, an order issued pursuant to this chapter, or any other provision of applicable law.
(2) The City of Locust may include in the cease and desist order the payment of a civil penalty for violating any section of this chapter, or for violating a compliance agreement or order issued pursuant to this chapter.
(H) Withholding of inspections, permits, certificates of occupancy or other approvals. Building inspections; permits for development or other improvements; requests for plan approval for zoning, subdivision, other development or construction; and certificates of occupancy may be withheld or conditioned upon compliance with this chapter, until a violator with ownership or management of the property for which permits or approvals are sought has fully complied with this chapter and all actions taken pursuant to this chapter.
(I) Restoration of areas affected by failure to comply. The City of Locust may require a person responsible for a violation to restore all areas affected by the violation to their pre-violation condition, in order to minimize the detrimental effects of the resulting impacts. This authority is in addition to any other enforcement actions authorized under this chapter.
(J) Abatement by the City of Locust. If the violation has not been corrected pursuant to the requirements set forth in the notice of violation or by other allowable remedies, or, in the event of an appeal under § 51.09, within ten days of the decision of the Stormwater Advisory Committee to uphold the decision of the City of Locust, then the City of Locust or a contractor designated by the City of Locust may enter upon the subject premises, and is authorized to take any and all measures necessary to abate the violation and/or restore impacted areas to their pre-violation condition, in order to minimize the detrimental effects of the resulting impacts. It shall be unlawful for any person in possession or control of any premises to refuse to allow the City of Locust or its designated contractor to enter upon the premises for the purposes set forth above. The person in violation will be notified of the cost of abatement, including administrative costs. If the specified amount is not paid within 30 days after it is due, the City of Locust shall request the City Attorney to institute a civil action to recover the specified amount. The civil action shall be brought in Stanly/Cabarrus County Superior Court or in any other court of competent jurisdiction. Such civil actions must be filed within three years of the date the notice was served on the violator.
(K) Emergencies. If delay in correcting a violation would seriously threaten the effective enforcement of this chapter, or pose an immediate danger to the public health, safety, welfare or environment, including but not limited to waters of the state, then the City of Locust may order the immediate cessation of the violation. Any person ordered to cease the violation or to remedy the violation shall do so immediately. The City of Locust may seek immediate enforcement through any remedy or penalty authorized in this chapter or other applicable law.
(L) Injunctive relief.
(1) Whenever it has reasonable cause to believe that any person is violating or threatening to violate this chapter, the City of Locust may, either before or after the institution of any other action or proceeding authorized by this chapter, authorize the City Attorney to institute a civil action, in the name of the city, for injunctive relief to restrain the violation or threatened violation. The action shall be brought pursuant to G.S. § 153A-123 in Stanly/Cabarrus County Superior Court.
(2) Upon determination by a court that an alleged violation is occurring or is threatened, the court shall enter such orders or judgments as are necessary to abate the violation or to prevent the threatened violation. The institution of an action for injunctive relief under this section shall not relieve any party to such proceedings from any civil penalty prescribed for violations of this chapter.
(Ord. passed 10-8-2015)