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HomeMy WebLinkAboutArticle 12 CC Recommendation Draft CLEANDRAFT GARFIELD COUNTY, COLORADO Article 12: Enforcement, Violations, Penalties and Appeals CODE COMMITTEE RECOMMENDATION DRAFT OCTOBER 30, 2012 CLEAN ULUR 2008 GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-2 GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-I ARTICLE 12 ENFORCEMENT, VIOLATIONS, PENALTIES AND APPEALS TABLE OF CONTENTS 12-101 ENFORCEMENT AUTHORITY.......................... ............................................................1 12-102 VIOLATIONS. ................................................................................................................1 A. Land Use Approvals. ................................................................................................ 1 B. Building Permits. ........................................................ .............................................. 1 C. Conditions of Approval. ............................................................................................ 1 D. Subdivisions. ............................................................................................................ 1 E. Developments in Areas and Activities of State Interest (§24-65.1-101 et seq. through 501 et seq., C.R.S., as amended)..................................................................................... 2 F. Continuing Violations....................................... ......................................................... 2 12-103 ENFORCEMENT PROCEDURES. ................................................................................2 A. Authority. .................................................................................................................. 2 B. Notice of Violation. .......................................................... ......................................... 2 C. Required Removal of Improvements. ....................................................................... 2 D. Revoking and Withholding Building Permits. ............................................................ 2 E. Withdrawal of Development Permit........................................................................... 3 F. Forfeiture of Vested Property Right. ......................................................................... 3 G. Criminal Enforcement. ........................................................ ...................................... 3 H. County Court Civil Penalty........................................................................................ 3 I. Civil Enforcement. .................................................................................................... 3 J. Subdivision Enforcement...................................................................... .................... 4 K. Areas and Activities of State Interest. ....................................................................... 4 12-104 PENALTIES........................................... ........................................................................4 A. Criminal Penalties. ................................................................................................... 4 B. Civil Penalties........................................................................................................... 4 C. Civil Cause. ..................................................... ......................................................... 4 12-105 INSPECTION. ................................................................................................................4 12-106 DECISION REVIEW.......................................................................................................5 A. Takings Determinations............................................... ............................................. 5 B. Regulatory Impairment of Property Rights. ............................................................... 6 C. Appeals. ............................ ....................................................................................... 6 12-107 PARTIES OF INTEREST. ................................................................................. .............6 GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-II (This Page Left Blank Intentionally) GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-1 ARTICLE 12: ENFORCEMENT, VIOLATIONS, PENALTIES, AND APPEALS 12-101ENFORCEMENT AUTHORITY. Provisions of this Code shall be enforced by the BOCC and their authorized staff utilizing all authority granted under Colorado law. 12-102VIOLATIONS. A. Land Use Approvals. It shall be unlawful to use real property or the improvements on real property; to undertake the development of real property; to erect, construct, reconstruct, remodel, restore or improve a building or structure; to excavate land; or to alter or change the use of any real property or improvements on real property, within the unincorporated territory of the County in a way inconsistent with, not in accordance with, or not specifically allowed by this Code and without first obtaining all land use approvals or permits required by this Code. B. Building Permits. It shall be unlawful to use real property or the improvements on real property; to undertake the development of real property; to erect, construct, reconstruct, remodel, restore or improve a building or structure; to excavate land; or to alter or change the use of any real property or improvements on real property, within the unincorporated territory of Garfield County in a way inconsistent with, not in accordance with, or not specifically allowed by the adopted building code and without first obtaining a building permit in accordance with the provisions of this Code and the adopted Building Code of the County. C. Conditions of Approval. It shall be unlawful to use real property or the improvements on real property; to undertake the development of real property; to erect, construct, reconstruct, remodel, restore or improve a building or structure; to excavate land; or to alter or change the use of any real property or improvements on real property, within the unincorporated territory of the County in a way inconsistent with or not in accordance with the terms and conditions of any land use approval or building permit granted by the BOCC, its staff or authorized agents pursuant to the terms of this Code. D. Subdivisions. 1. In addition to the violations set forth above, any owner, subdivider, or agent of a subdivider who transfers or sells any property within a subdivision before a Final Plat for such subdivided land has been approved by the Board and filed and recorded in the Office of the Garfield County Clerk and Recorder shall have violated the terms of this Code. 2. Any owner, subdivider, or agent of a subdivider who improves, sells or develops real property within a Subdivision in a manner that is inconsistent with and not permitted by the Subdivision Improvements Agreement authorizing the development of such subdivision shall be deemed to have violated the provisions of this Code. GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-2 E. Developments in Areas and Activities of State Interest (§24-65.1-101 et seq. through 501 et seq., C.R.S., as amended). It shall be unlawful to use any real property or the improvements on real property; to undertake the development of real property; to erect, construct, reconstruct, remodel, restore or improve a building or structure; to excavate land; or to alter or change the use of any real property or improvements on real property within the unincorporated territory of the County in a way inconsistent with, not in accordance with or not permitted by those regulations of this Code specifically directed to controlling development in areas of activities of state interest. F. Continuing Violations. Each day during which any violation of this Code or any part hereof continues shall be deemed a separate offense and violation. 12-103ENFORCEMENT PROCEDURES. A. Authority. The Garfield County Zoning Official, the Garfield County Building Inspector, and the Garfield County Code Enforcement Officer (all 3 positions are hereinafter referred to as “Enforcement Officials”), and the Garfield County Attorney are hereby delegated the power to enforce all provisions of this Code, the adopted Building Code, the adopted regulations of areas and activities of state interest, including without limitation, any condition imposed on an approval, and may utilize any remedies authorized under Colorado law or the provisions of this Article. B. Notice of Violation. Whenever the Enforcement Officials have personal knowledge of any violation of this Code, such person shall give written Notice of Violation to the purported violator to correct or cease and desist from continuing the violation. An immediate order to cease the violation shall be tendered in the case of a severe risk to health, safety and welfare of other citizens, but in no event shall a correction period longer than 10 days be granted by the Enforcement Officials for correcting the violation. C. Required Removal of Improvements. The Enforcement Officials, in their Notice of Violation set forth above, are hereby authorized to require the immediate removal of all fixtures, utilities, appliances, structures or other improvements or to require the removal or restoration of any other development, or cessation of use when such use or development in not permitted by the provisions of this Code or when such development violates the terms and conditions of an existing approval, including the approval of a Subdivision Improvements Agreement. If compliance with requested removal or cessation of activities is not achieved, an Enforcement Official may proceed with criminal or civil enforcement or both as set forth below. Such action may be taken with the assistance and concurrence of the County Attorney. D. Revoking and Withholding Building Permits. 1. In the event that either an Enforcement Official has personal knowledge of any violation of this Code or the adopted Building Code or other regulations set forth herein, they shall revoke any building permit that has been issued for improvements of the subject property where the violation is known to exist. 2. In the event that an Enforcement Official has knowledge of any violation of this Code, the Building Code or other provisions of this regulation, no GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-3 land use approvals or building or other development permits shall be issued with respect to the property where the violation is believed to exist during the period of such violation. The BOCC may suspend or revoke any existing land use approvals for the property where the known violation exists, subject to conducting a properly noticed hearing where such hearing would be required for the land use approval that is the subject of the revocation, following the same process and notification required to obtain such original approval. E. Withdrawal of Development Permit. If an activity or development permitted by a development permit is not operated in strict compliance with the terms and conditions attached to that permit, that development permit may be withdrawn utilizing the same procedures and same period of notification required to obtain the original approval for such development permit. F. Forfeiture of Vested Property Right. 1. If a Site Specific Development Plan is approved with conditions, the failure to abide by the terms and conditions of approval may result in a forfeiture of vested property right, and may result in revocation or suspension of the approval. 2. Forfeiture of a vested property right and revocation or suspension of a development approval shall be by resolution of the BOCC after public hearing in accordance with this section, as well as the provisions of Section 12-106(A) concerning takings determinations. Notice of the hearing shall be published and mailed to the owner of applicable real property in accordance with that section. 3. Any hearing conducted for forfeiture of a vested property rights shall also be considered a hearing for final determination of any allegations or claims concerning a taking of property without just compensation and such claim shall be resolved under this section, as well as the provisions of Section 12-106(A), concerning takings determinations. G. Criminal Enforcement. Should the noticed violator fail to correct the noticed violation within the required time period, an Enforcement Official may request that the Garfield County Sheriff issue a summons and complaint to the violator stating the nature of the violation with sufficient particularity to give notice of said charge to the violator. In all respects, the Enforcement Official, together with the Garfield County Sheriff, shall comply with the provisions of §30-28-124, C.R.S., as amended. H. County Court Civil Penalty. At the election of the Garfield County Attorney, Garfield County, acting through an Enforcement Official, may elect to pursue remedies under either §30-28-124, C.R.S., as amended, or §30-28-124.5, C.R.S., as amended, seeking imposition of criminal penalties, civil penalties or both. In the event that the County Attorney elects to follow the provisions of §30-28-124.5, C.R.S., as amended, the officials of the County shall comply with the provisions of that section. I. Civil Enforcement. Notwithstanding the listing of enforcement powers in this article, and in addition to those powers, in case any building or structure is or is proposed to be erected, constructed, reconstructed, altered, or used, or any land is proposed to be used in violation of this GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-4 Code or in a manner not specifically permitted by this Code or the adopted building code or any amendment of such documents as enacted by the BOCC, the County Attorney, in addition to other remedies provided by law, may institute a request for injunction, mandamus, abatement or other appropriate action or proceeding to prevent, enjoin, abate, or remove such unlawful erection, construction, reconstruction, alteration, or use. The County Attorney may proceed with such civil enforcement after authorization by the BOCC. Such action by the County Attorney may include any request for declaration and relief under a Subdivision Improvements Agreement. J. Subdivision Enforcement. In addition to any other enforcement powers set forth in this article, the BOCC shall have the authority to bring an action to enjoin any owner, subdivider or agent of a subdivider from selling land before a Final Plat for such subdivided land has been approved by the BOCC and recorded with the Clerk and Recorder. Additionally, the BOCC or any purchaser of any lot or parcel of land subject to a plat restriction that is part of an approved subdivision and subject to a Subdivision Improvements Agreement shall have the authority to bring an action against a subdivider or agent of a subdivider to compel enforcement of any Subdivision Improvements Agreement on the sale, conveyance or transfer of title or any other provision of such Subdivision Improvements Agreement. Such authority shall include the right to compel rescission of sale, conveyance or transfer of title of any lot, lots, track or tracks of land contrary to the provisions of any such restriction set forth in the plat or any separate recorded instrument and shall include the power to vacate any approved plat as such plat concerns any property that has not been conveyed to ownership separate from the subdivider or subdivider’s agent. K. Areas and Activities of State Interest. For any area designated as a matter of state interest or for conduct of any activity designated as a matter of state interest for which a permit is required by this Code, the BOCC may seek to enjoin any development in such designated area or designated activity by any person who has not obtained such required permit. 12-104PENALTIES. A. Criminal Penalties. Any person convicted of violating any provision of this Code shall be guilty of an offense as set forth in §30-28-124, C.R.S., as amended, and shall be subject to all fines and penalties as set forth therein. B. Civil Penalties. Any person found to have violated any provision of this Code shall be subject to the imposition of a penalty as set forth in §30-28-124.5, C.R.S., as amended, and the property that is the subject of the penalty shall be subject to the lien set forth therein. C. Civil Cause. Any person found to have violated any provision of this Code, any conditions imposed pursuant to this Code or any agreement required by this Code, shall be subject to the payment of all costs, fees and expenses incurred by the County in abating such violation. 12-105 INSPECTION. The Enforcement Officials and County staff under their supervision are hereby authorized to inspect any lands, buildings or improvements to determine if such are in compliance with this Code or any adopted building code. Any official performing such inspection shall abide by all GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-5 laws of search and seizure as set forth by federal and state statutory and constitutional provisions. 12-106 DECISION REVIEW. A. Takings Determinations. 1. General. A property owner who is an applicant for a development permit, a land use change, subdivision approval who believes they are adversely affected or aggrieved by a determination by the Planning and Zoning Commission or the BOCC and who believes or contends that the determination by any of the above referenced individuals, agencies or commissions constitutes a taking of all economically beneficial use of private property without just compensation in violation of the United States or Colorado Constitutions or a taking of a vested property right, said property owner shall, as a pre-requisite to any appeal, defense of or judicial review of a decision, request a hearing pursuant to this section before the BOCC. 2. Process for Appeal. An application for a Takings Determination shall be submitted no later than 15 days from the date of the decision that the applicant believe constitutes a taking of all economically beneficial use of the property or taking of a vested property right. Within 45 working days of the receipt of a written request for hearing, pursuant to this section, the BOCC shall conduct a hearing and within 15 working days after such hearing, render its decision. The hearing set forth above shall be conducted as an open public meeting, properly agendaed at either a regular or special Board of County Commissioner meeting. Prior to such hearing, the BOCC shall provide written notification to the applicant of such hearing, which written notification shall be tendered to the applicant at least 3 calendar days and not more than 10 calendar days prior to the date of such hearing. Such notification shall be tendered by either personal service of notice or mailing by certified United States mail. 3. Applicability. In the event that a petition is submitted under this section, the Board of County Commissioner determination on the underlying petition shall not be considered final for purpose of judicial review until the Takings Determination to be made under this section has been decided by the Board. 4. Standards. The BOCC shall determine whether the property owner will be denied all reasonable use and economic return or will be denied all use of a vested property right as a result of the questioned determination. If the BOCC determines that a Takings pursuant to that standard has or may occur, it shall take such action as it deems appropriate to remedy the situation. In making its decision, the BOCC shall consider the value of the property as a whole or the existence of a demonstrated vested property right. In making its determination, the BOCC shall consider the beneficial uses that remain in the property, notwithstanding the challenged determination, and shall give due consideration to the reasonable investment expectations of the landowner, unless such claim involves a taking of a vested property right. 5. Relief. In the event that the BOCC determines that a taking of economically beneficial use of private property may have occurred or that the owner may have suffered the taking of a vested property right, the BOCC may award relief that would be available pursuant to the Code. If GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-6 such relief requires consideration at a public hearing, the BOCC shall establish such hearing with appropriate required notifications. The BOCC shall determine who shall bear the cost of such notification for any required public hearing based upon equitable considerations. 6. Qualified Experts. The BOCC may, in its discretion, seek the assistance of qualified experts in evaluating the information submitted and the opinions of the property owner regarding the alleged taking. B. Regulatory Impairment of Property Rights. 1. If a land owner elects to file a notice of Regulatory Impairment of Property Rights pursuant to the provisions of § 29-20-203, C.R.S. as amended, the BOCC shall consider such notice, rendering a decision as required by §29-20-204, C.R.S., as amended, at a public meeting within the time frame required by that section. 2. If a landowner elects to file notice under § 29-20-201, C.R.S. as amended, Regulatory Impairment of Property Rights, consideration of that notice shall be a final determination under the provisions of this Article with no further or additional right to appeal to the BOCC concerning a decision of the board concerning that landowner’s property. Any decision rendered under § 29-20-204, C.R.S. as amended by the BOCC as required by that statute shall be considered final for purposes of subsequent judicial review which review shall be limited as provided by that statute. C. Appeals. 1. Board of Adjustment. a. The Board of Adjustment will consider appeals of administrative interpretations entered by Enforcement Officials consistent with the provisions of Section 1-303. b. The Board of Adjustment shall hear appeals concerning requests for variance to the Code consistent with the provisions of Section 1-303. 2. BOCC and Planning Commission. Appeals from final decisions of the BOCC and the Planning Commission shall be conducted pursuant to appropriate provisions of the Colorado Revised Statutes and the Colorado Rules of Civil Procedure. 12-107 PARTIES OF INTEREST. For the purpose of determining the ability to seek judicial review of a decision resulting from a quasi judicial hearing, the parties in interest who may seek such review shall be limited to those individuals or entities entitled to receive written, mailed notification of the hearing that led to the contested decision. Although all individuals or entities may participate in a quasi judicial public hearing, only those individuals and entities shown by the record of that proceeding as those with a right to receive such written, mailed notification shall be recognized as parties in interest for the purpose of any subsequent judicial review of the action emanating from such hearing.