§ 26-187. Remedies and penalties.

The remedies and penalties provided herein, whether civil or criminal, 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.

(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 developments approvals. As long as a violation of this article continues and remains uncorrected, the stormwater administrator or other authorized agent may withhold, and the town council, planning board, planning department, and building inspections department may disapprove, any request for permit or development approval or authorization provided for by this article or the zoning, subdivision, or building regulations for the land on which the violation occurs.

c.

Injunction, abatements, etc. The stormwater administrator, with the written authorization of the town manager, 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 article. Any person violating this article 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 G.S. 160A-193, the stormwater administrator, with the written authorization of the town manager, 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 violating this article. 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 The stop-work order may be withdrawn or modified to enable the person to take the necessary remedial measures to cure such violation or violations.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.

a.

Any person who allows, acts in concert, participates, directs, or assists directly or indirectly in the creation of a violation of this article is subject to a civil penalty. A civil penalty may be assessed from the date the violation first occurs.

b.

Civil penalties may be assessed up to the full amount of penalty to which the town is subject for violations of its NPDES stormwater permit, or $5,000.00 for each violation of this article, whichever is greater. Each day of violation shall constitute a separate violation.

c.

Penalties may be assessed concurrently with a notice of violation for any of the following:

1.

Obstructing, hampering, or interfering with an authorized town representative who is in the process of carrying out official duties under this article;

2.

A repeated violation for which a notice of violation was previously given to the person responsible for the violation; or

3.

Willful violation of this article.

d.

In determining the amount of a civil penalty, the stormwater manager shall consider any relevant mitigating and aggravating factors, including:

1.

Degree and extent of harm caused by the violation;

2.

Cost of rectifying the damage;

3.

Amount of money saved through noncompliance;

4.

Whether the violator took reasonable measures to comply with this article;

5.

Knowledge of the requirements by the violator and/or reasonable opportunity or obligation to obtain such knowledge;

6.

Whether the violator voluntarily took reasonable measures to restore any areas damaged by the violation;

7.

Whether the violation was committed willfully;

8.

Whether the violator reported the violation to an appropriate authority;

9.

Technical and economic reasonableness of reducing or eliminating the discharge; and

10.

Prior record of the violator in complying or failing to comply with this article or any other water pollution control ordinance or regulation.

e.

The stormwater manager shall determine the amount of the civil penalty to be assessed under this article and 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 said 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 town within 30 days after it is due, the stormwater manager shall request the town attorney to institute a civil action to recover the amount of the assessment. The civil action shall be brought in the 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.

f.

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.

g.

Civil penalties collected pursuant to this article shall be credited to the town general fund as a non-tax revenue.

h.

A violation of this article 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 article.

(Code 2003, § 32-73; Ord. No. 09-05, 3-19-2009)