Whenever it appears to any person, including, but not limited to, the building official, community development staff, commission members, the city council, the Valley County prosecuting attorney, city attorney, Valley County sheriff, or city police that any person is engaging in or about to engage in an act or practice violating any provisions of this title, the person should orally or in writing notify the administrator or the administrator's office. The administrator, with the assistance of staff, the appropriate law enforcement agency, and attorney, shall cause an investigation to be made of the alleged violation, as the administrator deems advisable under the circumstances.
(A) Administrative Authority: The administrator or the administrator's staff, or the appropriate law enforcement agency, has the authority to:
1. Conduct a program of continuing surveillance and of regular or periodic inspection of potential or actual violations.
2. Enter, at all reasonable times after an application for a building permit or for a permit under this title has been received, upon any private or public property for the purpose of inspecting it or to ascertain whether there is or has been a violation of this title, a permit, or other ordinances relating hereto.
(B) Procedure Upon Determining Violation Exists: If an investigation discloses that there is a basis for believing that a violation exists, the administrator, or the appropriate law enforcement agency, shall follow the following procedure, unless the administrator determines that prompt criminal prosecution or authorization of prompt civil action should be requested:
1. Issue and serve upon the person alleged to have violated this title a written notice. This notice shall specify the provision of this title, variance or permit which has been violated; the extent and manner in which this title, variance or permit has been violated, and the procedure for the person to contest the allegation. A copy of this notice shall be delivered to the city attorney, and also, if the property is located in the impact area, the Valley County prosecuting attorney.
2. If a hearing is requested by the person in writing within seven (7) days of the service of the notice, then the administrator shall schedule a settlement conference with said person within thirty (30) days from the time that the administrator has been served with said request for a hearing. The administrator shall also schedule, within sixty (60) days, a hearing before the commission on said notice.
3. If the allegations of the notice cannot be resolved in the above mentioned settlement conference, the matter shall be submitted for hearing before the commission. If the matter can be resolved, then the agreement shall be accepted or rejected by the commission, and a recommendation forwarded to city council.
4. The conduct of the hearing on the notice shall be as set forth in chapter 15 of this title.
5. The commission shall render its decision, including proposed findings of fact and conclusion of law within thirty (30) days from the date of the hearing.
6. After the decision of the commission as set forth in subsection (B)5 of this section, any party has the right to appeal the decision to the city council.
7. The city council shall have the right to hear the appeal from the commission in the same manner as set forth in chapter 15, "Procedures, Appeals And Action", of this title.
(C) Liability For Civil Penalty: If the preventive or corrective measure is not taken in accordance with the settlement agreement, commission decision, or order of the city council, then the person in violation of said agreement, commission decision or order of the city council shall be liable for a civil penalty not to exceed one thousand dollars ($1,000.00) per day, beginning with the time fixed for the taking of the preventive or corrective measure set forth in the agreement, commission decision or order of the city council.
(D) Emergency; Dangerous Conditions: If the circumstances of the violation of this title, permit, or variance constitute an emergency creating conditions of immediate danger to the public health, safety, welfare or to the quality of the environment, the administrator shall immediately notify the commission, the city council and the appropriate attorney. The city council may institute a civil action for immediate injunction to seek any relief deemed appropriate under the circumstances as well as a civil penalty not to exceed one thousand dollars ($1,000.00) per day.
(E) Factors Considered For Imposition Of Civil Penalty: The administrator shall consider in any imposition of a civil penalty the following factors:
1. The nature of the violation.
2. Whether the violation was disclosed to the administrator or staff prior to its detection.
3. Whether the violation was corrected without administrator or staff action.
4. The cost of enforcing and investigating the violation.
5. Whether the violation was an isolated occurrence or a multiple offense.
6. Whether there is an undue risk of future violations during the remaining construction phase of the permit.
7. Whether a fine under the circumstances would serve as a deterrent to this person or other persons similarly situated.
8. Whether there were grounds tending to excuse or justify the violation.
9. Whether the person was cooperative and willing to correct the violation.
(F) Settlement Agreement: At any stage of the proceedings, any person to whom a notice has been served may waive the formal proceedings and enter into a settlement agreement with approval of the city council. The entry of the city into a settlement agreement under this chapter, approved by the city council, shall constitute administrative res judicata and bars any assertion by the city that acts or omissions of the person entering into such settlement agreement with the city, which acts or omissions are approved in the settlement agreement, violate provisions of this title in effect on the date of such settlement agreement; provided, however, that such settlement agreement is performed by that person, and provided that the assent of the city to such settlement agreement was not procured by bribery, misrepresentation, fraud, or other illegal influence.
(G) Other Available Legal Remedies Allowed: Nothing in this title or this section shall preclude the city council from any other legal or equitable remedy available.
(H) Impact Area; Officials Of Authority: The city council and the board of county commissioners shall determine from time to time whether enforcement of this title in court as to the impact area should be entrusted to the office of the city attorney or the office of the Valley County prosecuting attorney, and the matter having been so decided, such attorneys shall take all necessary steps to effectuate that decision. (Ord. 821, 2-23-2006, eff. 3-16-2006)