Whenever it appears to any person, including, but not limited to, the building inspector, planning and zoning staff, commission members, the board, the county prosecuting attorney or county sheriff that any person is about to engage in act or practice violating any provisions of this title, the person shall orally or in writing notify the administrator or his office. The administrator, with the assistance of staff, the county sheriff and the county prosecuting attorney, shall cause an investigation to be made upon the oral or written request concerning an alleged violation of this title, permit, or other county ordinance relating hereto, as the administrator deems advisable under the circumstances.
A. Authority: The administrator or staff shall have the authority to:
1. Conduct a program of continuing surveillance and regular or periodic inspection of the potential or actual violation.
2. Enter, at all reasonable times, upon any private or public property for the purpose of inspecting or investigating to ascertain violations of this title, permit, or ordinances relating hereto.
B. Violation: If an investigation discloses that there is a reasonable basis for believing that a violation exists, the administrator or staff shall follow the following procedure:
1. Issue and serve upon the person alleged to have violated this title a written notice of violation. This notice shall specify the provision of this title, variance or permit which has been violated; the extent and manner in which the ordinance, variance or permit has been violated and the procedure for the person to contest the allegation. The written notice shall be sent by certified mail to the person's home mailing address and/or business address, or personally served upon the person. A copy of this notice shall also be delivered to the 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 seven (7) days from the time that the administrator has been served with said request for a settlement conference. If no response is received, the violation will be sent to the Valley County prosecuting attorney who shall act on the matter within forty five (45) days.
3. If the allegations of the violation, as described in the notice, cannot be resolved in the above mentioned settlement conference with the administrator, the matter shall be submitted for review before the commission at the next regularly scheduled public meeting. If the matter can be resolved, then the agreement shall be ratified or rejected by the commission.
4. If the agreement reached by the administrator in the settlement conference is rejected by the commission, then a hearing on the notice shall be held at the next regularly scheduled hearing of the commission.
5. The conduct of the hearing on the notice shall be as set forth in section 9-5H-11 of this title.
6. The administrator shall render the commission's decision, in writing, within seven (7) days from the date of the hearing.
7. After the decision of the commission, any party may have the right to appeal the decision to the board.
8. The board shall have the right to hear the appeal from the commission in the same manner as set forth in section 9-5H-12 of this title.
C. Civil Penalty: If such preventive or corrective measure is not taken in accordance with the settlement agreement, commission's decision, or order of the board, then the person in violation of said agreement, commission's decision or order of the board 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's decision or order of the board.
D. Circumstance Of Violation Constitutes Emergency: If the circumstances of the violation of this title, permit or variance constitute an emergency creating conditions of immediate danger to the public health, the administrator shall immediately notify the commission, the board, and the county prosecuting attorney. The board 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. Considerations In Imposition Of Civil Penalty: The board 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. 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. Waiver Of Formal Proceedings: 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 board.
G. Additional Remedies: Nothing in this title or this section shall preclude the board from any other legal or equitable remedy available. (Ord. 10-06, 8-23-2010)