Civil penalties. 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.
(A) Civil penalties for a violation. The maximum civil penalty amount that the Town may assess per violation 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 section for all violations associated with the land-disturbing activity for which the erosion and sedimentation control plan is required is $25,000.
(B) Civil penalty assessment factors. The governing body of the Town shall determine the amount of the civil penalty based upon the following factors:
(1) The degree and extent of harm caused by the violation;
(2) The cost of rectifying the damage;
(3) The amount of money the violator saved by noncompliance;
(4) Whether the violation was committed willfully; and
(5) The prior record of the violator in complying or failing to comply with this chapter.
(C) Notice of civil penalty assessment. The Town 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. A notice of assessment by the Town shall direct the violator to either pay the assessment, contest the assessment within 30 days by filing a petition for hearing with the Town Board of Adjustment as described in the Town of Southern Pines Unified Development Ordinance § 2.23 Appeals: or file a request with the Town for remission of the assessment within 60 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.
(D) Appeal of final decision. Appeal of the final decision of the Board of Adjustment of the Town shall be to the Superior Court of Moore County by proceedings in the nature of certiorari. The petition for the writ of certiorari must be filed with the Moore County Clerk of Court within 30 days after a written copy of the decision has been mailed to the person assessed.
(E) Remission of civil penalties.
(1) A request for remission of a civil penalty imposed under G.S. § 113A-64 may be filed with the Board of Adjustment 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:
(a) 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.
(b) Whether the petitioner promptly abated continuing environmental damage resulting from the violation.
(c) Whether the violation was inadvertent or a result of an accident.
(d) Whether the petitioner had been assessed civil penalties for any previous violations.
(e) Whether payment of the civil penalty will prevent payment for necessary remedial actions or would otherwise create a significant financial hardship.
(f) 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.
(2) The petitioner has the burden of providing information concerning the financial impact of a civil penalty on the petitioner and the burden of showing the petitioner's financial hardship.
(3) The Board of Adjustment may remit the entire amount of the penalty only when the petitioner has not been assessed civil penalties for previous violations and payment of the civil penalty will prevent payment for necessary remedial actions.
(F) Collection. If payment is not received or equitable settlement reached within 30 days after demand for payment is made, the matter shall be referred to the Town Attorney for institution of a civil action in the name of the Town in the appropriate division of the General Courts of Justice in Moore County for recovery of the penalty. A civil action must be filed within 3 years of the date the final decision was served on the violator.
(G) Credit of civil penalties. The clear proceeds of civil penalties collected by the Town under this subsection shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. § 115C-457.2. Penalties collected by the Town 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 Town for the prior fiscal year.
(H) Criminal penalties. Any person who knowingly or willfully violates any provision of this chapter, or rule or order adopted or issued by the Commission or a local government, 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 as provided in G.S. § 113A-64.
(1989 Code, § 154.99) (Ord. 1185, passed 6-14-2005; Am. Ord. 1953, passed 11-9-2021; Am. Ord. 3032, passed 3-12-2024)