Homer ord amending zoning enforcement chapter 21.30

AN ORDINANCE AMENDING HOMER CITY CODE CHAPTER 21.30 TO MAKE PROVISIONS FOR ENFORCEMENT OF ZONING CODE VIOLATIONS

THE CITY OF HOMER HEREBY ORDAINS:

Section 1. Homer City Code Section 21.30.040 is hereby amended to read as follows:

21.30.040 Procedures for abating violations. a. When a violation is discovered, the City Manager or his appointed staff shall notify in writing, via certified mail or by notice posted at the site of the violation, the person responsible for the violation. The notice shall specify the violation and order abatement within a reasonable period of time, to be no longer than ninety days. All purported violations known to the City Manager, including interpretation and abatement action, shall be presented to the Homer Advisory Planning Commission at its next regular meeting.

b. If a violation is not corrected within the period stated in the notice, the City Manager is authorized to notify any attorney representing the City who may initiate action to abate the violation, including the filing of criminal charges as necessary.

21.30.040 Enforcement orders. A. In addition to any other remedy or other method of enforcement available under the Homer Zoning Ordinance or other provision of the Homer City Code or other law, the Administrative Official or the Planning Director may order:

1. The discontinuation of a use of land or a structure that is in violation of the Homer Zoning Ordinance, a regulation or a permit.

2. The abatement or removal of a structure or part of a structure that is in violation of the Homer Zoning Ordinance, a regulation or a permit.

3. The discontinuation of construction or other activity preparatory to a structure or use of real property that is in violation of the Homer Zoning Ordinance, a regulation or a permit.

4. The suspension or revocation of a permit under which a violation of the Homer Zoning Ordinance or regulations is occupied, maintained, constructed or established.

5. The restoration of any structure, vegetation, land, water body or other thing upon the land that is destroyed, damaged, altered or removed in violation of the Homer Zoning Ordinance, regulations or a permit.

6. Any other action necessary to prevent, abate or discontinue a violation of the Homer Zoning Ordinance, a regulation or a permit.

B. An enforcement order issued under subsection A of this section may be directed to one or more violators. A written enforcement order issued under subsection A of this section that is served on a violator personally or by certified mail is immediately appealable to the Planning Commission. An appeal must be filed within 30 days of its service. Failure to appeal to the Planning Commission within 30 days of service shall constitute a waiver of all rights of appeal from the order. During such time that an enforcement order is appealed, no further development contrary to the order will continue. The procedure for appeals is set forth in Chapter 21.68.

C. An enforcement order need not be issued before legal action is commenced with respect to a violation of the Homer Zoning Ordinance, a regulation or a permit. The pendency of any proceeding regarding an enforcement order issued under subsection A of this section does not stay any other legal action with respect to the violation that is the subject of the enforcement order.

Section 2. Homer City Code Section 21.30.050 is hereby amended as follows:

21.30.050 Violation--penalty. a. Every act prohibited by this title or any rule or regulation adopted in pursuance thereof is declared unlawful, and every violation in chapters 21.28 through 21.70 shall constitute a misdemeanor. Every person convicted of a violation of any provision of this title or any rule or regulation adopted or issued in pursuance thereof, shall be punished under the general penalty provision of the Homer City Code. Each act of violation and every day upon which such violation continues after the expiration of any grace period specified in the notice of violation constitutes a new and separate offense.
b. The penalties provided by this section shall, unless other penalty is expressly provided, apply to every portion of the Homer City Zoning Ordinance, Chapters 21.28 through 21.70 inclusive, and to all amendments to the ordinance.

21.30.050 Violations. A. The following are ~~unlawful~~ violations of this Code:

1. A structure, alteration of a structure, or use of land or a structure that conflicts with a provision of the Homer Zoning Ordinance, a regulation or a permit.

2. To use or occupy a structure, land or water other than as permitted by the Homer Zoning Ordinance, regulations, or a permit.

3. To erect, construct, reconstruct, move, repair or alter a structure or part thereof other than as permitted by the Homer Zoning Ordinance, a regulation or a permit.

4. To violate the terms of an enforcement order that has not been appealed, or if appealed, remains in effect after all appeals are exhausted.

5. To occupy or use any land or structure in any manner for which a permit is required without such a permit or after such permit has been suspended or revoked.

B. Each act or condition in violation of this Code, and every day upon which the act or condition occurs, is a separate violation.

C. A violator is a person who:

1. Occupies, maintains, alters, constructs or establishes a structure, or use of land or a structure, in violation of the Homer Zoning Ordinance, a regulation or a permit.; or

2. Owns, controls or has the right to control land or a structure where the land or structure is used, occupied, maintained, altered, constructed or established in violation of the Homer Zoning Ordinance, a regulation or a permit.

Section 3. Homer City Code Chapter 21.30 is hereby amended by ~~adding additional~~ sections as follows:

21.30.060 Invalid land use permits. No permit may be issued under the Homer Zoning Ordinance unless all structures on and uses of the property conform to the Homer Zoning Ordinance, regulations, and any previously issued permits that are applicable to the property and remain in effect. Any permit issued in violation of this section is void.

21.30.070 Inspections; right of entry. A. Subject to subsection B of this section, at any reasonable time, the Administrative Official, Planning Director, or other staff member designated in writing by either of them may, upon presentation of proper identification, enter upon and inspect any land, building or premises where he or she has probably cause ~~reasonable cause~~ to believe there exists a violation, or enter upon any land, building or premises to perform a duty of an official under this title.

B. Where the constitution of the United States or of the state so requires, the official shall obtain an administrative search warrant authorizing an inspection and exhibit the warrant to the person in charge of the premises before conducting the inspection. The official shall apply to the trial courts of the state to obtain an inspection warrant, stating in the application the name and address of the premises to be inspected, the authority to conduct the inspection, the nature and extent of the inspection and the facts and circumstances justifying the inspection. Warrants issued under this section shall be returned within ten days.

21.30.080 Penalties and remedies. A. With respect to any violation of the Homer Zoning Ordinance, a regulation or a permit, the city may bring a civil action to:

1. Enjoin or abate the violation. Upon application for injunctive relief and a finding that a person is in violation or threatening a violation, the superior court shall enjoin the violation.

2. Require the restoration of any structure, vegetation, land, water body or other thing upon the land that is destroyed, damaged, altered or removed in such violation.

3. Recover damages suffered because of the violation.

4. In addition to injunctive or compensatory relief, recover a civil penalty, payable to the city, not exceeding $1,000.00 for each violation.

B. A person who violates this title shall be subject to a fine as set forth in an applicable bail forfeiture schedule adopted by the city, or, if no penalty is set forth in an applicable bail forfeiture schedule, a fine of not less than $75.00 and not more than $300.00 for each violation.

C. Whenever a written enforcement order is in effect that has not been appealed, or if appealed, remains in effect after all appeals are exhausted, and a violation continues to exist, the Administrative Official may:

1. Commence proceedings to cause the abatement of the violation pursuant to Section 21.30.090; or

2. Assess an administrative fine, not exceeding $250.00 per day, for failure to comply with a final enforcement order.

D. The remedies provided in this section are not exclusive, but are cumulative of all other remedies available at law or in equity.

E. Any person aggrieved by a violation of the Homer Zoning Ordinance, a regulation or a permit may bring a civil action against the violator as provided in subsection A of this section. For purposes of this section, a person occupying or owning land within three hundred feet of the perimeter of the parcel containing the violation is irrebuttably presumed to be a person aggrieved. The city shall not be responsible for the costs or fees of such an action, which shall be the sole responsibility of the person filing the action.

21.30.090 Abatement of violations. A. Any use, activity, property, or structure in violation of an enforcement order issued under Section 21.30.040 that continues after the time for appeal from the enforcement order has passed, or if appealed, continues after all appeals are exhausted, is a public nuisance and may be abated by the city as provided in this section.

B. Before action is taken to abate a violation, a final warning notice shall be posted on the property and served personally or by certified mail with return receipt requested to the violator and the owner of record of the property. Unless enjoined by court order within 30 days of the posting and service of the final warning notice, the Administrative Official will proceed to abate the violation. If the Administrative Official finds it necessary to effectively abate the violation, he or she may cause the physical destruction or removal of the violation.

C. The Administrative Official shall cause to be kept an account of the cost, including incidental expenses, incurred by the city in the abatement of any violation. The Administrative Official will send an invoice for collection to the violator and owner of record of the property specifying the nature and costs of the work performed. For purposes of this section, the term "incidental expenses" shall include but not be limited to the actual expenses and costs to the city in the preparation of the notices, specifications and contracts, work inspection, attorneys fees, consultant fees and interest from the date of completion at the rate of ten percent per annum.

D. The property owners of the property upon which the abatement occurred are liable to the city for the entire cost of the abatement. Such charges become a lien upon the real property upon which the abatement occurred. If the invoice for the costs of the abatement remain unpaid after 30 days from the invoice, the Administrative Official will record a notice of lien at the district recorder's office. The lien shall be subordinate to all state and municipal tax liens and existing special assessment liens previously imposed upon the same property and shall be prior and paramount to all other liens. The lien shall continue until the charges and all interest due and payable thereon are paid.

E. The lien created under this section may be enforced as provided in AS 34.35.005--34.35.045. The enforcement of the lien is a cumulative remedy and does not bar the collection of the charges for abatement or costs and attorney fees through a personal action.

21.30.100 Definitions. As used in this chapter:

A. "Permit" means any permit or other authorization issued by the City under the authority of the Homer Zoning Ordinance or regulations.

B. "Regulation" means any regulation adopted by the City under the authority of the Homer Zoning Ordinance.

Section 4. This ordinance is of a permanent and general character and shall be included in the City Code.

ENACTED BY THE CITY COUNCIL OF THE CITY OF HOMER, ALASKA, this 23rd day of June, 2003.