Chapter 9.08 ADMINISTRATIVE PROVISIONS

B. Hear and decide appeals of the planning commission related to zoning and permitting. The assembly’s decision shall be final for the borough. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.010), 1993)

9.08.020 Administrator.

Subject to the mayor’s review, the administrator is authorized and empowered to carry out all of the duties set forth in this chapter, may serve as staff to the planning commission, and shall have all other power and authority reasonably necessary and desirable to carry out those duties, including the power to delegate those duties as appropriate. In the absence of the administrator, the mayor or the mayor’s designee may perform the duties of the administrator. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.020), 1993)

9.08.030 Planning commission – Implementation of title.

The planning commission may adopt by resolution such rules governing the conduct of its business and, after public notice and opportunity to comment, such rules, policies and standards as it deems necessary and desirable to implement the provisions of this title. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.030), 1993)

9.08.040 Approvals – Duration and conditions.

A. Duration of Approvals. Permit approvals are valid only during applicant’s compliance with this title and the terms and conditions of approval. However, approvals and permits expire automatically 12 months after issuance if no construction, activity or occupancy has commenced, or if the use has been suspended for 12 consecutive months. Unless there are extenuating circumstances, determined by the administrator to be beyond the control of the applicant, a request for an extension after a 12-month period of suspension will be treated as a new application and subject to the appropriate approval process. The administrator or planning commission may place limits on the duration of an approval or establish a longer duration. Approved uses, unless ordered to cease by the administrator, shall be allowed to continue during the appeal of the issuance of an approval.

B. Conditions of Approval. The assembly, commission or administrator may place conditions upon issuance of any approval which are necessary or desirable to ensure that a rule, policy, standard or intent will be implemented in a manner consistent with this title or the coastal management plan. Any permit or approval issued under this title shall require compliance with any other federal, state or local regulations which are applicable to the activity. For projects that require a borough permit and a state or federal permit, the applicant may not commence activities permitted by a state or federal agency until the approval is issued by the state or federal agency and the borough issues its permit. Except on borough lands, a permit granted under this title does not allow activity on other lands without the further permission of the affected landowner. The issuance of a permit or approval under this title or enforcement or lack of enforcement of any such permit or approval shall not be deemed grounds for borough liability arising out of the errors or omissions of the permittee or the person who received the approval. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.040), 1993)

9.08.050 Reviewing parties.

The administrator or the planning commission may identify those parties that are to be included in the review of proposed actions under this title. These parties may include local governments; state or federal agencies; tribes; regional, tribal or state health agencies and experts; and private individuals or groups potentially affected or with interests in the proposed action. The administrator or the commission may establish new groups to participate in the review process. The parties and established groups will be provided all relevant materials and may submit comments and recommendations concerning the proposed actions. Any village council shall automatically be included as a reviewing party of any proposed action within its village’s area of influence. Upon timely request, landowners in the vicinity of the proposed use who make such a request shall be included as reviewing parties. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.050), 1993)

9.08.060 Fees.

The commission shall establish a schedule of fees for permits or other actions under this title by resolution. The administrator may waive or reduce the fees in this schedule when the borough, state, federal or a local government is the applicant, when the applicant is a nonprofit corporation or for any natural person for whom the fee would pose an economic hardship. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.060), 1993)

9.08.070 Compliance.

Any use that is not in compliance with the applicable provisions of this title as well as permits, master plans, approvals, and other authorizations issued under this title is a violation of this title. The administrator may take administrative actions consistent with this title to bring about compliance, and may initiate or request such civil or criminal action as may be available for violations of this title.

A. Violation Complaint. Any person may bring to the attention of the administrator suspected violations of this title. The complaint may be oral or in writing. The administrator shall summarize in writing the substance of any complaint lodged orally. The administrator is authorized to investigate any credible complaints in order to ensure compliance with this title. At any time, upon his or her initiative, or upon the receipt of a complaint, the administrator may inspect or investigate any use or development for compliance with or violations of this title.

B. Violation Notice. After a violation has been discovered, investigated and verified, the administrator will notify by written finding the person responsible for the violation and the property owner by personal notice, certified mail and/or notice posted on the site of the violation. The finding will specify the violation(s) and may specify the range of fines or penalties to be imposed and shall direct the person to cease the violation, or appeal the finding within 10 days after receipt, mailing or posting of the notice, as the case may be. All violation notices will be reported to the commission at its next meeting. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.070), 1993)

9.08.075 Nonconformities.

The purpose of this section is to identify nonconforming uses and to mitigate any negative effects which any nonconforming uses might have on uses conforming to district regulations. Nonconformities which are in full compliance with the provisions of this section are not subject to fines or remedial actions.

A. Regulation of Nonconformities. The administrator shall encourage landowners and developers to address nonconformities which are clearly inconsistent with the purposes of or uses allowed in districts in which such nonconformities are located. A nonconformity may be changed to another nonconformity with approval of the administrator as a use permit. The administrator must find the new use is more consistent with the uses allowed in the zoning district. When a nonconformity is discontinued or abandoned for 12 months or more at any time after the effective date of this title, it shall not thereafter be resumed unless approved or permitted under the procedures specified in this title and according to the standards applicable to variances in NABC 9.08.076. When a nonconformity is damaged so that the cost of repair exceeds 65 percent of the value of a structure or other improvement, as estimated by the administrator, the use must be changed to a use which is allowed in the district. After the effective date of this title, a nonconformity of land or structure, or a nonconformity of land and structure in combination, shall not be extended, expanded or enlarged nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

B. Upon application, the administrator may issue a decision defining the scope and nature of any nonconformity in accordance with the procedures for approvals under Chapter 9.16 NABC. The application shall be accompanied by such supporting documentation and evidence as the administrator may require. The administrator may elevate consideration of any such application pursuant to NABC 9.16.030, in which case the application shall be processed according to the requirements for a use permit or conditional use permit as provided in Chapter 9.16 or 9.20 NABC. Applicants for nonconformity decisions may appeal adverse determinations to the planning commission and assembly as permitted under this chapter. (Ord. 10-14, 2011)

9.08.076 Variances from standards.

A. This section does not apply to uses and activities in areas within subsistence conservation or habitat districts. In order for this section to apply to an area in a subsistence conservation or habitat district, the area must be rezoned to another district.

B. All uses must comply with each of the standards specified in Chapter 9.25 NABC unless the standard is not applicable to the proposed use or the administrator finds the proposed use meets all of the following criteria:

1. There is a significant public need for the proposed use;

2. The costs of complying with the standard outweigh the public benefits of complying with the standard;

3. The applicant has rigorously explored and objectively evaluated all feasible and prudent alternatives to the proposed use and cannot comply with the standard;

4. The applicant has documented the reasons for noncompliance with the standard;

5. For projects where affected landowners, tribes or villages have raised concerns, consultation with those entities has been completed; and

6. The other requirements in this subsection have been met.

C. If the requirements in subsection (B) of this section have been met, uses of the categories or types described in subsection (D) of this section may be allowed only if the applicant has taken all feasible and prudent steps to avoid the following adverse effects associated with the proposed use:

1. Development that will likely result in significantly decreased productivity of subsistence resources or their ecosystems;

2. Development that restricts subsistence user access to a subsistence resource;

3. Uses from April 15th to July 10th that will likely displace beluga or bowhead whales. These uses may include, but are not limited to, extensive barge or boat traffic, low altitude or frequent plane and helicopter traffic, and other activities resulting in excessive noise or other forms of disturbance;

4. Off-shore and on-shore uses within the areas of beluga, bowhead whale, or bearded seal, caribou or other species’ migration which significantly interfere with subsistence activities or jeopardize the continued availability of migrating animals for subsistence purposes during the migration seasons;

5. Uses on or near a shoreline that have the potential of adversely affecting water quality (e.g., landfills, hazardous materials storage areas, dumps, etc.). “Near,” as used in the phrase “near the shoreline,” is defined as that area within a 1,500-foot setback from the high water mark along the coast, lake shore or river;

6. Public highway development including village roads and streets, and highways indicated in the borough or a capital improvement program, which adversely affect subsistence habitat or which significantly interfere with subsistence activities or jeopardize the continued availability of migrating animals for subsistence purposes during the migration seasons;

7. Transportation development, including pipelines, which significantly obstructs wildlife migration;

8. Duplicative transportation corridors from resource extraction, mineral development and other development sites;

9. Mining of beaches, barrier islands or off-shore shoals. Even in those circumstances where no feasible and prudent alternatives exist, alteration of shoreline dynamics is prohibited if there would be significant adverse effects, including beach erosion;

10. Placement of structures in floodplains subject to a 50-year recurrence level and in geologic hazard areas.

D. Variance Requirements for Specific Uses. The following measures are required for each type of use listed below:

1. Mining and gravel extraction shall be evaluated with respect to the type of extraction operation, location, possible mitigation measures, and season so as to lessen, to the maximum extent practicable, environmental degradation of coastal lands and waters (e.g., siltation of anadromous rivers and streams).

2. Mining development is required to be sited, designed, constructed and maintained in a manner that prevents significant adverse effects on fish and wildlife and their habitat, including water circulation and drainage patterns and coastal processes.

3. Major and minor resource extraction support facilities, including administration offices, operations, residence and other uses not absolutely required in the field, must be located in a designated service base which is sited, designed, constructed and maintained to be as compact as possible while sharing facilities to the maximum extent possible.

4. Gravel extraction activities within floodplains shall maintain buffers between active channels and the work area, avoid in-stream work, permanent channel shifts and ponding of water, clearing of riparian vegetation, and disturbance to natural banks.

5. New subdivisions or other significant development within an existing subdivision must provide appropriate water and sewer service to prevent damage to fish and wildlife and their habitat.

6. Transportation facilities and utilities must be consolidated to the maximum extent possible.

7. Mining and gravel extraction are required to be sited, designed, constructed and maintained in a manner that does not substantially interfere with the use of a site that is important for significant cultural uses or essential for transportation to subsistence use areas.

E. Flood Damage Prevention Standards. Variances from the requirements of NABC 9.25.020(O)(4) may be granted by the planning director or planning commission as permitted by law and in accordance with the following conditions:

1. A determination that the granting of a variance will not result in increased flood elevations, additional threats to public safety, extraordinary public expense, create nuisances, or conflict with existing federal, state and local flood prevention laws or ordinances.

2. A determination that the variance, while affording relief, will authorize the minimum possible departure from the provisions of this chapter. (Ord. 10-14, 2011)

9.08.080 Enforcement orders.

A. Upon substantiation of a violation, the administrator may:

1. Order the discontinuance of activity for any use which does not comply with the terms of this title;

2. Order the removal or abatement of buildings or structures or any noncompliant additions or alterations to buildings or structures;

3. Order the discontinuation of development, use, construction or other activity leading to a noncompliant use or structure;

4. Order the restoration of any structure, vegetation, land, waterbody, or other thing upon the land that is destroyed or damaged;

5. Specify the date by which corrective actions be completed;

6. Revoke permits or other licenses issued by the borough;

7. Order submittal of a plan for compliance with the terms of this title. The plan shall include a schedule for completion and procedures to accomplish compliance. The administrator will review and approve, condition, or deny the plan pursuant to the administrative approval procedures of Chapter 9.16 NABC;

8. Assess a civil fine under provisions in NABC 9.08.240;

9. Order posting of a surety or other security in a form and amount calculated by the administrator to ensure correction of the violation and recovery of any damages; or

10. Take any other action necessary to ensure compliance with all provisions of this title, including revocation or suspension of approvals.

B. An order issued by the administrator under this chapter shall be delivered to the owner, operator, manager, or lessee of the property, or person responsible for the violation by personal service or by certified mail, or, if the foregoing parties cannot be located after a reasonable inquiry, it may be posted in a conspicuous place on the site of the violating development. An order posted under this chapter may not be moved, removed, modified, defaced, hidden or obliterated except upon the authority of the administrator.

C. An enforcement order may be appealed to the commission in accordance with NABC 9.08.090 or to the assembly in accordance with NABC 9.08.100 through 9.08.180. Pending appeal, the mayor may in his/her discretion stay an enforcement order. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.080), 1993)

9.08.090 Appeals – To the commission.

Any aggrieved person, including the applicant, may appeal a decision of the administrator by serving written notice of appeal on the administrator (and the applicant) within 15 business days of receipt of the decision. The notice shall state the reasons why the appellant believes the decision of the administrator is improper. Notice of an appeal is considered served when actually received or when properly mailed. The issues before the commission shall be limited to those raised on appeal, and the evidence shall be limited to a review of the record, although further argument may be allowed based on the record. The burden of proof shall be on the appellant to demonstrate the issues on appeal by substantial evidence. Except for an applicant, the appellant must also demonstrate the manner in which the appellant is adversely affected by the decision being appealed. The commission may affirm or reverse the administrator’s decision, return the matter to the administrator for further evidence, or change the conditions attached to any approval issued by the administrator. Approved uses may proceed during the appeal process unless ordered to cease by the administrator or the planning commission. Uses which have not been approved are subject to abatement, fines and other penalties following an unsuccessful appeal. For appeals of the administrator’s decision for a penalty under NABC 9.08.240, the commission shall render a written decision ordering a full fine, a partial fine or dismissal. The order shall contain findings supporting the conclusion and action ordered. If the violator fails to appear at the hearing, without good cause, the person hearing the case may treat such failure as an admission of the violation and may issue an order with appropriate findings and may impose a fine. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.100), 1993)

9.08.100 Appeals – To the assembly.

An appeal to the assembly from any decision of the planning commission may be made in the same manner and according to the same requirements as set forth above for appeals to the commission. Notice of appeal shall be served on the administrator. The assembly’s decision shall be final for the borough. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.110), 1993)

9.08.110 Appeals – From assembly decisions.

Any person aggrieved by the final decision of the assembly may appeal such a decision or action as provided under NABC 9.08.210. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.120), 1993)

9.08.120 Date of hearing.

Where an appeal to the commission or assembly is allowable under this title and an appeal has been properly lodged, such proceeding shall take place at the next regularly scheduled or special meeting of the body hearing the appeal; provided, that sufficient time exists for the applicant and the borough to prepare the appeal. In no case should the date of hearing exceed three months from the lodging of the appeal. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.130), 1993)

9.08.130 General hearing procedures.

Appeals under this title should be conducted informally and may be governed by such rules and procedures as the commission or assembly may choose to establish, except that:

A. Parties may appear in person or through counsel.

B. Parties may present witnesses and evidence on their own behalf.

C. Parties or their counsel may cross-examine opposing witnesses on matters relevant to the issues, impeach witnesses regardless of which party first called the witness to testify, and rebut evidence against themselves.

D. Relevant evidence should be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a common law or statutory rule which makes improper the admission of the evidence over objection in a civil action. Hearsay evidence may be considered, provided there are guarantees of its trustworthiness and that it is more probative on the point for which it is offered than any other evidence which the proponent can procure by reasonable efforts.

E. All appeals shall be open to the public, unless otherwise agreed by all parties to the appeal.

F. All appeals should be memorialized by an electronic recording or a stenographic record. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.140), 1993)

9.08.140 Specific hearing procedures.

Subject to modification by the commission or the assembly, the following procedures shall be followed in the conduct of an appeal.

A. Before the Planning Commission.

1. The notice of violation, or the notice of appeal if the appeal does not relate to a notice of violation, shall be read into the record.

2. Parties make opening statements (appellant going first).

3. Appellant presents its case, which may include a statement or information provided by witnesses. An opportunity is provided for cross-examination.

4. The administrator and/or the applicant, as appropriate, offers a rebuttal.

5. Parties make closing remarks (appellant going first).

6. The planning commission deliberates and makes a written decision under the provisions of NABC 9.08.160 and 9.08.170.

B. Before the Assembly. In appeals before the assembly, the administrator or the borough clerk may assist in preparation of the record on appeal. The record on appeal shall contain a brief factual summary of the proceedings before the planning commission, and any other relevant information. Either party may request a full transcript of the prior proceedings before the planning commission. Such request must be in writing, presented to the borough clerk, and the borough clerk will deliver the transcript within 15 business days of the request. The party making such request must bear the costs of transcription. The borough clerk will notify the requesting party of the costs of such transcription once the transcription has been completed.

The appeal shall proceed as follows.

1. The decision of the planning commission shall be read into the record or distributed to assembly members for review.

2. Parties make opening statements (appellant going first).

3. Appellant presents its case, which may include a statement or information provided by witnesses. An opportunity shall be provided for cross-examination by the borough.

4. The planning commission or its designee and/or the applicant, as appropriate, offers a rebuttal.

5. Parties make closing remarks (appellant going first).

6. The assembly deliberates and makes a written decision under the provisions of NABC 9.08.160 and 9.08.170.

C. Telephonic Appearances. Telephonic appearances of parties to appeals is allowable, particularly in cases where it will result in reduced costs to all parties.

D. Failure to Appear. If any appellant has a scheduled appearance, but has failed to appear before the appellate body, the appeal will proceed as scheduled, and any documents or evidence submitted by the appellant will be presented to the appellate body at the time of the hearing. For good cause shown, the appellate body may postpone the hearing at the request of the appellant. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.150), 1993)

9.08.150 Scope of review.

The commission or assembly may hear and decide de novo all matters appealed and may exercise independent judgment as to the weight of evidence supporting or refuting the decision being appealed, and may exercise independent judgment on legal issues raised by the parties. Decisions being appealed may be reversed, modified, remanded or affirmed by the commission or assembly. In each case where the reviewing body denies the appeal, it may also determine any penalties to be imposed for a violation. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.160), 1993)

9.08.160 Deliberations.

Upon close of the presentation of the case on appeal, and after any closing remarks have been made by the parties, the body hearing the appeal may adjourn to closed chambers to privately discuss any adjudicatory matters pertaining to the appeal or may otherwise take the matter under advisement prior to issuing a written decision on the matter under appeal. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.170), 1993)

9.08.170 Decisions.

No later than 15 business days following an administrative hearing or quasi-judicial proceeding conducted under this chapter, the body empowered to conduct the appeal proceeding shall issue a written decision based on findings and conclusions adopted by the body hearing the appeal. An oral decision may be given on the record at the close of the proceedings, but such decision will not become a final decision from which appeal may be taken until that decision is issued as a written decision containing the required findings. Such findings must be in writing and must be reasonably specific so as to provide interested persons and, where appropriate, reviewing authorities, a clear and precise understanding of the reasons for the decision entered. The decision, findings of fact and conclusions of law shall be forwarded to all parties to the appeal. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.180), 1993)

9.08.180 Reconsideration.

A. A decision of the commission or the assembly reached at the conclusion of a hearing or other proceeding may be reconsidered or reheard only if:

1. There was substantial procedural error in the original proceedings; or

2. The original decision was based on fraud or misrepresentation.

B. Any party to an appeal seeking reconsideration or rehearing must file a request with the borough clerk together with the materials supporting one or more of the grounds stated above within 10 business days after the date of the final decision for which reconsideration or rehearing is requested. If reconsideration is granted, a rehearing may also be granted if appropriate. A rehearing shall be conducted in the same manner as the original proceeding. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.190), 1993)

9.08.190 Ex parte contacts prohibited.

Members of the commission or the assembly, while acting in a quasi-judicial capacity, shall be impartial in all matters both in fact and in appearance. No member of the commission or the assembly shall receive or otherwise engage in ex parte communications with the appellant, applicant or other parties adversely affected by the appeal or members of the public concerning the appeal or issues specifically presented in the notice of appeal, either before the appeal hearing or afterwards during the period of time the matter is subject to reconsideration. This section shall not be deemed to prevent those charged with conducting appeals under this title from discussing matters relating to the appeal among themselves or to prohibit communications between the borough staff and such persons where such staff members themselves are not named parties to an appeal. Insofar as practicable, communications between borough staff and such commission or assembly members should avoid discussion of the merits, evidence or other nonprocedural matters related to a specific appeal. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.200), 1993)

9.08.200 Transition.

The provisions of this chapter shall apply only to those appeals or applications for administrative decisions filed on or after the date this title becomes effective. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.210), 1993)

9.08.210 Judicial relief.

Any aggrieved party may seek an appeal before the superior court for the state of Alaska only after final exhaustion of all administrative remedies and appeals. The venue for an appeal to the superior court will be the Second Judicial District at Kotzebue. All such judicial appeals are appeals on the record, and no new evidence or issues may be presented. Both parties are limited to the record on appeal, except to the extent that the Alaska Rules of Civil Procedure require otherwise. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.220), 1993)

9.08.215 Costs of enforcement.

A. A developer shall be responsible for all costs reasonably incurred by the borough in enforcing violations of this title and unsuccessful appeals of a decision by the administrator or the planning commission. Such costs shall include, but are not limited to, the cost of detecting, investigating and attempted correction of the violations; reasonable attorney fees and costs; costs of removal of structures; repair or restoration of damages; and all other costs related to the enforcement action.

B. In addition, in the discretion of the administrator, the borough may assess the economic savings realized by the person in not complying with the requirement for which a violation is charged. “Economic savings” means the sum which a person would be required to expend for the planning, acquisition, siting, construction, installation and operation of the facilities necessary to effect compliance with the standard violated.

C. All costs shall become a lien on the violator’s property or interest in property, if the property or interest was the subject of the abatement action, or shall become collectible and subject to any collection actions the borough employs to collect other debts.

D. The administrator may defer assessment of all or part of that portion of the costs imposed upon a person under this section conditioned upon the person complying, within the shortest feasible time, with the requirement that was violated. (Ord. 10-14, 2011)

9.08.220 Lien enforcement.

Repealed by Ord. 10-14. (Ord. 93-02 § 1 (9.30.230), 1993)

9.08.230 Interpretation.

All questions of the administrator’s interpretation of the provisions of this title shall be treated as an appeal if proper notice is served pursuant to NABC 9.08.120. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.240), 1993)

9.08.240 Violation – Penalty.

A. Administrative Fines. The commission may establish by resolution a schedule of civil fines for various violations which can be imposed by the administrator and disposed of without court appearance. Absent such a schedule, fines may be levied by the administrator, with the approval of the mayor, on a case-by-case basis for each violation up to the maximum allowed by this chapter. Prior to imposing a fine under this section, the administrator shall give written notice to the violator of the violation and that a specific fine will be imposed unless the violator can show in a written statement to the administrator cause why the fine should not be imposed. The administrator may modify the decision in response to the written statement of the violator. The administrator’s decision may be appealed according to the process in NABC 9.08.090. All orders issued under this section shall be mailed or otherwise promptly delivered to the violator and shall contain notice of a violator’s right to appeal the decision to the commission and the time within which such an appeal must be filed. Fines imposed under this section may be collected in a civil action against the violator if not paid voluntarily within 30 days.

B. Civil Remedies. The administrator, with the approval of the mayor, may commence a civil judicial action against a person who violates a provision of this title or a term, a lawful order of the borough, or a condition or limitation imposed on a permit or approval under this title. A judicial action to enjoin a violation may be brought notwithstanding the availability of any other remedy. Each act of violation and every day a violation exists is a separate violation. In addition to other relief, a civil penalty shall not exceed $1,000 per violation per day.

In the case of operating without an appropriate notice, permit or for violations which are related to public health, safety or welfare, no more than $5,000 for the initial violation nor more than $2,000 for each day thereafter on which the violation continues. When applicable, additional fees may be assessed, including:

1. Reasonable compensation in the nature of liquidated damages for any adverse public health, safety, welfare, or environmental effects caused by the violation, which shall be determined by the court according to the sensitivity of the receiving environment, and the degree to which the violation degrades existing environmental quality;

2. Reasonable enforcement costs incurred by the borough as described in NABC 9.08.215; and

3. The economic savings realized by the person in not complying with the requirement for which a violation is charged. As used in this section, “economic savings” means that sum which a person would be required to expend for the planning, acquisition, siting, construction, installation, or operation of the facilities necessary to effect compliance with the standard violated.

C. Criminal Remedies.

1. A person who willfully or recklessly violates a provision of this title, a lawful order of the borough, or a permit or a term or condition of a permit approved under this title is guilty of a Class A misdemeanor.

2. Each day on which a violation occurs is a separate violation.

3. A person who fails to provide or falsely states information required under this title is guilty of a Class B misdemeanor. Each unlawful act constitutes a separate offense.

D. Settlement. At any stage in any proceeding under this title, the administrator, with the approval of the mayor, may mitigate fines or other penalties in order to promote settlement of a dispute on terms deemed just and equitable under the circumstances.

E. Parties. A proper party for any enforcement action under this title may include the owner of the site or any part thereof; any lessee or occupant of the site or any part thereof; and the applicant, its agents, contractors, subcontractors and employees. (Ord. 10-14, 2011; Ord. 93-02 § 1 (9.30.090), 1993)