§ 17-136. Enforcement and violations

(a) General.

(1) Authority to enforce. The provisions of this division shall be enforced by the stormwater administrator, his or her designee, or any authorized agent of the town. Whenever this section refers to the stormwater administrator, it includes his or her designee as well as any authorized agent of the town.

(2) Violation unlawful. Any failure to comply with an applicable requirement, prohibition, standard, or limitation imposed by this division, or the terms or conditions of any permit or other development or redevelopment approval or authorization granted pursuant to this division, is unlawful and shall constitute a violation of this division.

(3) Each day a separate offense. Each day that a violation continues shall constitute a separate and distinct violation or offense.

(4) Responsible persons/entities. Any person who erects, constructs, reconstructs, alters (whether actively or passively), or fails to erect, construct, reconstruct, alter, repair or maintain any structure, BMP, practice, or condition in violation of this division shall be subject to the remedies, penalties, and/or enforcement actions in accordance with this section. Persons subject to the remedies and penalties set forth herein may include any architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that results in or constitutes a violation of this division, or fails to take appropriate action, so that a violation of this division results or persists; or an owner, any tenant or occupant, or any other person, who has control over, or responsibility for, the use or development of the property on which the violation occurs.

For the purposes of this article, responsible person(s) shall include but not be limited to:

a. Person maintaining condition resulting in or constituting violation. An architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that constitutes a violation of this division, or fails to take appropriate action, so that a violation of this division results or persists.

b. Responsibility for land or use of land. The owner of the land on which the violation occurs, any tenant or occupant of the property, any person who is responsible for stormwater controls or practices pursuant to a private agreement or public document, or any person, who has control over, or responsibility for, the use, development or redevelopment of the property.

(b) Remedies and penalties. The remedies and penalties provided for violations of this division, whether civil or criminal, shall be cumulative and in addition to any other remedy provided by law, and may be exercised in any order.

(1) Remedies.

a. Withholding of certificate of occupancy. The stormwater administrator or other authorized agent may refuse to issue a certificate of occupancy for the building or other improvements constructed or being constructed on the site and served by the stormwater practices in question until the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violations described therein.

b. Disapproval of subsequent permits and development approvals. As long as a violation of this division continues and remains uncorrected, the stormwater administrator or other authorized agent may withhold, and the board of adjustment may disapprove, any request for permit or development approval or authorization provided for by this division for the land on which the violation occurs.

c. Injunction, abatements, etc. The stormwater administrator, with the written authorization of the town council, may institute an action in a court of competent jurisdiction for a mandatory or prohibitory injunction and order of abatement to correct a violation of this division. Any person violating this division shall be subject to the full range of equitable remedies provided in the General Statutes or at common law.

d. Correction as public health nuisance, costs as lien, etc. If the violation is deemed dangerous or prejudicial to the public health or public safety and is within the geographic limits prescribed by North Carolina G.S. § 160A-193, the stormwater administrator, with the written authorization of the town council, may cause the violation to be corrected and the costs to be assessed as a lien against the property.

e. Stop work order. The stormwater administrator may issue a stop work order to the person(s) violating this division. The stop work order shall remain in effect until the person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violation or violations described therein. The stop work order may be withdrawn or modified to enable the person to take the necessary remedial measures to cure such violation or violations.

(2) Civil penalties. Violation of this division may subject the violator to a civil penalty to be recovered in a civil action in the nature of a debt if the violator does not pay the penalty within thirty (30) days after notice of the violation is issued by the stormwater administrator. Civil penalties may be assessed up to the full amount of penalty to which town is subject for violations of its USMP stormwater permit.

(3) Criminal penalties. Violation of this division may be enforced as a misdemeanor subject to the maximum fine permissible under North Carolina law.

(c) Procedures.

(1) Initiation/complaint. Whenever a violation of this division occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint shall state fully the alleged violation and the basis thereof, and shall be filed with the stormwater administrator, who shall record the complaint. The complaint shall be investigated promptly by the stormwater administrator.

(2) Inspection. The stormwater administrator shall have the authority, upon presentation of proper credentials, to enter and inspect any land, building, structure, or premises to ensure compliance with this division.

(3) Notice of violation and order to correct. When the stormwater administrator finds that any building, structure, or land is in violation of this division, the stormwater administrator shall notify, in writing, the property owner or other person violating this division. The notification shall indicate the nature of the violation, contain the address or other description of the site upon which the violation is occurring, order the necessary action to abate the violation, and give a deadline for correcting the violation. If civil penalties are to be assessed, the notice of violation shall also contain a statement of the civil penalties to be assessed, the time of their accrual, and the time within which they must be paid or be subject to collection as a debt.

The stormwater administrator may deliver the notice of violation and correction order personally, by certified or registered mail, return receipt requested, or by any means authorized for the service of documents by rule 4 of the North Carolina Rules of Civil Procedure.

If a violation is not corrected within a reasonable period of time, as provided in the notification, the stormwater administrator may take appropriate action under this division to correct and abate the violation and to ensure compliance with this division.

(4) Extension of time. A person who receives a notice of violation and correction order, or the owner of the land on which the violation occurs, may submit to the stormwater administrator a written request for an extension of time for correction of the violation. On determining that the request includes enough information to show that the violation cannot be corrected within the specified time limit for reasons beyond the control of the person requesting the extension, the stormwater administrator may extend the time limit as is reasonably necessary to allow timely correction of the violation, up to, but not exceeding thirty (30) days. The stormwater administrator may grant thirty-day extensions in addition to the foregoing extension if the violation cannot be corrected within the permitted time due to circumstances beyond the control of the person violating this division. The stormwater administrator may grant an extension only by written notice of extension. The notice of extension shall state the date prior to which correction must be made, after which the violator will be subject to the penalties described in the notice of violation and correction order.

(5) Enforcement after time to correct. After the time has expired to correct a violation, including any extension(s) if authorized by the stormwater administrator, the stormwater administrator shall determine if the violation is corrected. If the violation is not corrected, the stormwater administrator may act to impose one (1) or more of the remedies and penalties authorized by this division.

(6) Emergency enforcement. If delay in correcting a violation would seriously threaten the effective enforcement of this division or pose an immediate danger to the public health, safety, or welfare, then the stormwater administrator may order the immediate cessation of a violation. Any person so ordered shall cease any violation immediately. The stormwater administrator may seek immediate enforcement, without prior written notice, through any remedy or penalty authorized by this article.

(Ord. of 7-17-07(2), § 5)