Chapter 13.14
ENFORCEMENT AND MISCELLANEOUS
Sections:
13.14.010 Violations and enforcement.
13.14.030 Civil and criminal penalties.
13.14.040 Restoration of lands.
13.14.050 Holds on occupation permits.
13.14.060 Local hearing and procedures – Appeals.
13.14.010 Violations and enforcement.
(1) If the administrator determines that there is a failure to comply with the VSMP permit conditions or VESCP permit conditions or determines there is an unauthorized discharge, a violation notice shall be served upon the permittee or person responsible for carrying out the permit conditions as outlined in this chapter and the Code of Virginia. Violation notices shall be in writing and shall be served:
(a) By registered or certified mail to the address specified in the permit application;
(b) At the site of the development activities to the agent or employee supervising such activities;
(c) By delivery to the agent of the applicant otherwise; or
(d) By posting the notice at a conspicuous location at the site of the development activities.
(2) A violation notice shall specify the measures needed to comply with the permit conditions and shall specify the time within which such measures shall be completed. Upon failure to comply within the time specified, a stop work order may be issued in accordance with subsection (5) of this section and SCC 13.14.020 or the permit may be revoked by the administrator. Violation notices shall contain at least the following information:
(a) The name and address of the applicant;
(b) The address when available or a description of the building, structure or land upon which the violation is occurring;
(c) A statement specifying the nature of the violation;
(d) A description of the remedial measures necessary to bring the development activity into compliance with Division I of this title and a time schedule for the completion of such remedial action;
(e) A statement of the penalty or penalties that shall or may be assessed against the person to whom the notice of violation is directed; and
(f) A statement that the determination of violation may be appealed by filing a written notice of appeal with the administrator not later than 30 days of service of the notice of violation.
(3) If a permittee fails to comply with a notice issued in accordance with this section within the time specified, the administrator may issue an order requiring the owner, permittee, person responsible for carrying out an approved plan, or the person conducting the land-disturbing activities without an approved plan or required permit to cease all land-disturbing activities until the violation of the permit has ceased, or an approved plan and required permits are obtained, and specified corrective measures have been completed.
(4) Such orders shall be issued in accordance with SCC 13.14.020. Such orders shall become effective upon service on the person by: registered or certified mail to the address specified in the permit application; at the site of the development activities to the agent or employee supervising such activities; by delivery to the agent of the applicant otherwise; or by posting the notice at a conspicuous location at the site of the development activities. However, if the administrator finds that any such violation is grossly affecting or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth or otherwise substantially impacting water quality, it may issue, without advance notice or hearing, an emergency order directing such person to cease immediately all land-disturbing activities on the site and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend, or cancel such emergency order. If a person who has been issued an order is not complying with the terms thereof, the administrator may institute a proceeding for an injunction, mandamus, or other appropriate remedy in accordance with subsection (6) of this section.
(5) In addition to any other remedy provided by this title, if the administrator or designee determines that there is a failure to comply with the provisions of this title, the administrator may initiate such informal and/or formal administrative enforcement procedures in a manner that is consistent with this chapter.
(6) Any person violating or failing, neglecting, or refusing to obey any rule, regulation, ordinance, order, approved standard or specification, or any permit condition issued by the administrator may be compelled in a proceeding instituted in circuit court by the locality to obey same and to comply therewith by injunction, mandamus or other appropriate remedy. (Ord. 2014-09; Ord. 2007-20).
13.14.020 Stop work orders.
Persons receiving a “stop work order” will be required to halt immediately all construction activities. This “stop work order” will be in effect until the administrator confirms in writing that the development activity is in compliance and the violation is satisfactorily addressed. Upon failure to comply within the time specified, the permit may be revoked and the applicant shall be deemed to be in violation of this chapter and thereupon shall be subject to the penalties provided by Division I of this title and otherwise permitted by law. (Ord. 2014-09; Ord. 2007-20).
13.14.030 Civil and criminal penalties.
(1) VESCP Authority Civil and Criminal Penalties. Any person who violates any VESCP authority provision of Division I of this title shall be guilty of a Class 1 misdemeanor and shall be subject to a fine not exceeding $2,000 or up to 30 days’ imprisonment for each violation or both. In addition, without limitation, the administrator may:
(a) Apply to the circuit court to enjoin a violation or a threatened violation of the VESCP authority provisions of Division I of this title without the necessity of showing that an adequate remedy at law does not exist.
(b) Bring a civil action against any person for violation of any VESCP authority provisions of Division I of this title or any condition of a VESCP permit. The action may seek the imposition of a civil penalty of not more than $2,000 against the person for each violation.
(c) Provide, with the consent of any person who has violated or failed, neglected or refused to obey any VESCP authority provisions of Division I of this title or any condition of a VESCP permit, an order issued by the administrator against such person, for the payment of civil charges for violations in specific sums, not to exceed the limit specified by the provisions of this section. Such civil charges shall be instead of any civil penalty which could be imposed.
(2) VSMP Authority Civil and Criminal Penalties. Any person who violates any VSMP authority provision of Division 1 of this title or who fails, neglects, or refuses to comply with any order of the administrator shall be subject to a civil penalty not to exceed $32,500 for each violation, within the discretion of the court. Each day of violation of each requirement shall constitute a separate offense.
(a) Violations for which a penalty may be imposed under this subsection shall include but not be limited to the following:
(i) No state permit registration;
(ii) No stormwater pollution prevention plan (SWPPP);
(iii) Incomplete stormwater pollution prevention plan (SWPPP);
(iv) Stormwater pollution plan (SWPPP) not available for review;
(v) No approved erosion and sediment control plan;
(vi) Failure to install stormwater BMPs or erosion and sediment controls;
(vii) Stormwater BMPs or erosion and sediment controls improperly installed or maintained;
(viii) Operational deficiencies;
(ix) Failure to conduct required inspections;
(x) Incomplete, improper, or missed inspections; and
(xi) Discharges not in compliance with the requirements of 9 VAC 25-880-70 of the general permit.
(b) The administrator may issue a summons for collection of the civil penalty and the action may be prosecuted in the appropriate court.
(c) In imposing a civil penalty pursuant to this subsection, the court may consider the degree of harm caused by the violation and also the economic benefit to the violator from noncompliance.
(d) Any civil penalties assessed by a court as a result of a summons issued by the city shall be paid into the city treasury to be used for the purpose of minimizing, preventing, managing, or mitigating pollution of the waters of the city and abating environmental pollution therein in such manner as the court may, by order, direct.
(e) Notwithstanding any other civil or equitable remedy provided by this section or by law, any person who willfully or negligently violates any VSMP provision of Division 1 of this title, any order of the administrator, any condition of a VSMP permit, or any order of a court shall be guilty of a misdemeanor punishable by confinement in jail for not more than 12 months or a fine of not less than $2,500 nor more than $32,500, or both. (Ord. 2014-09; Ord. 2007-20).
13.14.040 Restoration of lands.
Any violator may be required to restore land to its undisturbed condition or in accordance with a notice of violation, a notice of stop work, or permit requirements. In the event that restoration is not undertaken within a reasonable time after notice, the administrator may take necessary corrective action, the cost of which shall be recovered under the performance bond, or become a lien upon the property until paid, or both. (Ord. 2014-09; Ord. 2007-20).
13.14.050 Holds on occupation permits.
A certificate of occupancy and/or inspections by the city’s building inspection department shall not be granted until all assessed civil penalties are paid and corrections to all erosion and sediment control and stormwater management practices have been made in accordance with the approved plans, notice of violation, notice of stop work, or permit requirements, and accepted by the administrator. (Ord. 2014-09; Ord. 2007-20).
13.14.060 Local hearing and procedures – Appeals.
(1) The establishment of the Staunton board of environment appeals, hereafter referred to as the “appeals board,” is hereby established. The appeals board shall be composed of three members: the city’s assistant city manager, the building official and the director of public works. The appeals board shall meet at the call of the assistant city manager or designee, and such other times as the appeals board may determine, at a fixed time and place.
(2) Any permit applicant or permittee, or person subject to the requirements of Division I of this title, aggrieved by any action of the administrator or designee taken without a formal hearing, or by inaction of the city, may demand in writing a formal hearing by the appeals board, provided a petition requesting such hearing is filed with the administrator not later than 30 days after notice of such action is given by the administrator.
(3) The hearings held under this section shall be conducted by the appeals board at a regular or special meeting of the appeals board, or by at least one member of the appeals board designated by the appeals board to conduct such hearings on behalf of the appeals board at any other time and place authorized by the appeals board.
(4) An audio record of the proceedings of such hearings shall be made by the appeals board and shall be a public record. Any party may have the audio recording transcribed at its expense. The party challenging the decision or action or inaction of the administrator shall have the burden of going forward and the burden of proof. An opening statement and a closing argument may be presented by the parties. The appeals board shall determine the procedures otherwise to be used for the proceedings and may allow hearsay evidence, recognizing that the proceedings should be of an administrative nature and conducted less formally than a court proceeding so as to promote a reasonably accessible process and to foster prompt decision-making.
(5) The appeals board or its designated member, as the case may be, shall have power to issue subpoenas and subpoenas duces tecum, and at the request of any party shall issue such subpoenas. The failure of a witness without legal excuse to appear or to testify or to produce documents shall be acted upon by the local governing body, or its designated member, whose action may include the procurement of an order of enforcement from the circuit court. Witnesses who are subpoenaed shall receive the same fees and reimbursement for mileage as in civil actions.
(6) Final decisions of the administrator or the appeals board under this chapter shall ultimately be subject to review by the circuit court for the city of Staunton, Virginia, by a party who is aggrieved by the decision; provided, that a petition for appeal is filed in the clerk’s office of such circuit court not later than 30 days from the date of the final written decision adversely affecting the rights and duties or privileges of the person engaging in or proposing to engage in land-disturbing activities. Such review shall proceed upon the petition and the administrative record before the appeals board. The decision of the appeals board shall be sustained unless the appeals board exceeded its authority, acted arbitrarily or capriciously, or abused its discretion. The decision of the circuit court shall be subject to review by the Court of Appeals of Virginia.
(7) Final decisions of the State Board, Department, or district shall be subject to judicial review in accordance with the provisions of the Administrative Process Act (Section 2.2-4000 et seq.). (Ord. 2014-09; Ord. 2007-20).
13.14.070 Severability.
If the provisions of any article, section, subsection, paragraph, subdivision or clause of this division shall be judged invalid by a court of competent jurisdiction, such order or judgment shall not affect or invalidate the remainder of any article, section, subsection, paragraph, subdivision or clause of this division. (Ord. 2014-09; Ord. 2007-20).