§ 23-89. Violations and enforcement.

(a)

General.

(1)

Violation. Failure to comply with the provisions of this article or the guidelines, conditions, plans, permits, approvals, or other similar authorizations issued pursuant to this article is a violation of this article, unlawful, and subject to all remedies authorized under law, including, but not limited to, those described in this article.

(2)

Separate offense. Each day of a violation shall constitute a separate violation or offense.

(3)

Responsible persons. Responsible persons are all persons or dischargers who participate in, assist, direct, create, cause, or maintain a condition that constitutes a violation of this article, or fails to take appropriate action so that a violation of this article results or persists. All persons or dischargers are considered under the definitions of this article to be responsible for a violation shall be considered responsible persons. Responsible persons include, but are not limited to, owners of property where a violation occurs; persons in the design or construction field who have created, directed, or assisted in the design or construction of an improvement or feature in violation of the requirements of this article; and persons who have control over the use or maintenance of property or the activities occurring on property where a violation has occurred. Multiple violations may be charged against multiple individuals or entities for an action that violates this article.

(4)

Public nuisance. In addition to the enforcement processes and penalties provided, any condition caused or permitted to exist in violation of any of the provisions of this article is a threat to public health, safety and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored at the responsible person's expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken.

(b)

Notice of violation. Whenever the town manager finds that a discharger has violated this article, the town manager shall notify the discharger, in writing by certified mail, personal service, or posting of said notice at the facility where the alleged violation occurred. The notice shall specify the violation and actions needed to be taken to comply. The notice may also indicate a requirement for the discharger to perform any or all of the following:

(1)

Cease and desist all violating discharges, practices or operations;

(2)

Eliminate illicit connections or discharges;

(3)

Abate or remedy the stormwater pollution or contamination hazards and restore any affected property;

(4)

Install equipment or perform testing necessary to monitor, analyze and report on the condition of the discharger's stormwater drainage system;

(5)

Implement source control or treatment BMPs; and/or

(6)

Pay a civil penalty.

If abatement of a violation and/or restoration of affected property are required, the notice shall set forth a deadline within which such remediation or restoration must be completed. Said notice shall further advise that, should the discharger fail to remediate or restore within the established deadline, authorized enforcement staff shall enter upon the facility and are authorized to take any and all measures necessary to abate the violation and/or restore the facility and the expense thereof shall be charged to the discharger and collected pursuant to subsection 23-89(c) below. Refusal to accept the notice shall not relieve the discharger of the obligations set forth herein.

(c)

Remedies.

(1)

Recovery of costs and fines. As authorized by G.S. 160A-193, the responsible person(s) shall be liable to the Town of Chapel Hill for the civil penalty, all costs incurred by the town while enforcing this article, including, but not limited to, abatement costs, remedying the damage caused by the illicit discharge, restoring the facility, sampling, cleanup, the Town of Chapel Hill's costs, costs of court, and costs of litigation, to include reasonable attorney's fees. Within thirty (30) days after the Town of Chapel Hill has completed its abatement of the violation, restoration of the facility and/or its investigation and inspection, the violating discharger or person will be notified of the Town of Chapel Hill's total costs and the civil penalty, if any. The total amount due shall be paid within thirty (30) days of the date of notice. If the amount due is not paid within thirty (30) days, the charges shall constitute a lien on the land or premises where the nuisance and/or violation occurred. A lien established pursuant to this subsection shall have the same priority and be collected as unpaid ad valorem taxes. The total amount due is also a lien on any other real property owned by the discharger within the Town limits or within one (1) mile of the town limits, except for the person's primary residence. A lien established pursuant to this subsection is inferior to all prior liens and shall be collected as a money judgment. The discharger may avoid the lien on any other real property owned by the discharger within the town limits or within one (1) mile of the town limits only if the discharger can show that the actual or threatened discharge was created solely by another person. In the event that the discharger is able to pass the liability onto another person, the other person shall be liable to the Town pursuant to this section.

(2)

Mandatory security for compliance. The town manager may require a responsible person to post a bond or provide other financial security of a type, form, and amount as specified in the discretion of the director, to assure performance of any actions required to bring a property into compliance with this article.

(3)

Withholding of inspections, permits, certificate of occupancy or other approvals. Building inspections; permits for development or other improvements; requests for plan approval for zoning, subdivision, other development or construction; and certificates of occupancy may be withheld or conditioned upon compliance with this article until a responsible person with ownership or management of the property for which permits or approvals are sought has fully complied with this article and all actions taken pursuant to this article.

(4)

Compensatory action. In lieu of a civil penalty for first time offenders, the town manager may impose upon a violator alternative compensatory actions, such as storm drain stenciling, creek cleanup, etc.

(5)

Remedies not limited. The remedies provided herein, whether civil, criminal, or administrative, 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.

(6)

Remedies not exclusive. The remedies listed in this article are not exclusive of any other remedies available under any applicable federal, state or local law and it is within the discretion of the town to seek cumulative remedies.

(d)

Civil penalties.

(1)

Any person who violates or fails to act in accordance with any of the provisions of this article or rules or orders adopted or issued pursuant to this article shall be subject to a civil penalty. A civil penalty for a violation may be assessed in an amount not to exceed ten thousand dollars ($10,000.00) per day. If any violation for which a penalty may be assessed is continuous, a civil penalty may be assessed for each day of the violation in an amount not to exceed twenty-five thousand dollars ($25,000.00) per day for as long as the violation occurs. Each day of a continuing violation shall constitute a separate violation under this subsection. Failure to comply with the requirements of this article may result in imposition of enforcement measures as authorized by G.S. 143-215.6B.

(2)

Procedures for assessing penalties. Said penalties shall be assessed by the town manager or his/her designee. No penalty shall be assessed until the person alleged to be in violation is served in writing by certified mail, personal service, or posting of said notice at the facility where the alleged violation occurred.

(3)

In the event the town is fined by the state or federal governments resulting from an illicit discharge or connection made by a discharger or other person, the discharger or other person at fault shall reimburse the town for the full amount of the civil penalty assessed by the state and/or federal governments as well as for the abatement costs incurred by the town during the investigation and restoration process pursuant to 23-89(c) above.

(4)

Civil penalties collected pursuant to this article shall be used or disbursed as directed by law.

(5)

Illicit discharges. Any responsible person who allows, acts in concert, participates, directs, or assists directly or indirectly in the creation of a violation of this article shall be subject to civil penalties as follows:

a.

For first time offenders, if the quantity of the discharge is equal to or less than five (5) gallons and consists of domestic or household products in quantities considered ordinary for household purposes, said person shall be assessed a civil penalty not to exceed one thousand dollars ($1,000.00) per violation or per day for any continuing violation, and if the quantity of the discharge is greater than five (5) gallons or contains non-domestic substances, including but not limited to process waste water, or if said person cannot provide clear and convincing evidence of the volume and nature of the substance discharged, said person shall be assessed a civil penalty not to exceed five thousand dollars ($5,000.00) per violation or per day for any continuing violation.

b.

For repeat offenders, the amount of the penalty shall be double the amount assessed for the previous penalty, not to exceed twenty-five thousand dollars ($25,000.00) per violation or per day for any continuing violation.

(6)

Illicit connections. Any person found with an illicit connection in violation of this article and any designer, engineer, contractor, agent, or any other person who allows, acts in concert, participates, directs, or assists directly or indirectly in the establishment of an illicit connection in violation of this article, shall be subject to civil penalties as follows:

a.

First time offenders shall be subject to a civil penalty not to exceed five thousand dollars ($5,000.00) per day of continuing violation.

b.

Repeat offenders shall be subject to a civil penalty not to exceed twenty-five thousand dollars ($25,000.00) per day of continuing violation.

(7)

Other violations. Any person found in violation of other provisions of this article, not specifically enumerated elsewhere, shall be subject to a civil penalty not to exceed one thousand dollars ($1,000.00) per violation or per day for any continuing violation.

(8)

In determining the amount of the penalty, the town manager or his/her designee shall consider:

a.

The degree and extent of harm to the environment, the public health, and public and private property;

b.

The duration of the violation;

c.

The effect on ground or surface water quality or on air quality or on flood hazard;

d.

The cost of remedying the damage;

e.

The amount of money saved by the violator through his, her, or its noncompliance;

f.

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

g.

Whether the violation was willful;

h.

Whether the violation was corrected within the specified time period (the penalty shall be assessed from the date of the violation and each day of continuing violation thereafter shall constitute a separate violation under this article);

i.

The prior record of the person responsible for the violation in complying or failing to comply with this article; and

j.

The costs of enforcement to the town.

(e)

Judicial actions.

(1)

Criminal penalties. Any violation of any provision of this article shall constitute a misdemeanor and shall subject the violator to a penalty of five hundred dollars ($500.00) or imprisonment for not more than thirty (30) days. Each day of a continuing violation shall constitute a separate violation under this subsection. Failure to comply with the requirements of this article may result in imposition of enforcement measures as authorized by G.S. 143-215.6B. The town may recover all attorney's fees, court costs, and other expenses associated with enforcement of this article.

(2)

Injunctive relief.

a.

Civil action in superior court. Whenever the town manager has reasonable cause to believe that any person is violating or threatening to violate this section or any rule or order adopted or issued pursuant to this section, the town manager may, either before or after the institution of any other action or proceeding authorized by this section, institute a civil action in the name of the town for injunctive relief to restrain the violation or threatened violation. The action shall be brought in the superior court of Orange County.

b.

Order to cease violation. Upon determination by a court that an alleged violation is occurring or is threatened, the court shall enter any order or judgment that is necessary to abate the violation, to ensure that restoration is performed, or to prevent the threatened violation. The institution of an action for injunctive relief under this section shall not relieve any party to the proceedings from any civil or criminal penalty prescribed for violations of this section.

(Ord. No. 2016-11-14/O-1 , § 1)