Sec. 9.4.11. Enforcement

  1. Civil Penalties
    1. Any person who violates any of the provisions of this Article, any regulation, rule or order duly adopted pursuant to this Article; or who undertakes or continues a land-disturbing activity for which a soil erosion and sedimentation control plan is required except in accordance with the terms, conditions and provisions of an approved plan shall be subject to the specific civil penalties set forth in Sec. 9.4.11.F.
    2. The initial civil penalty shall be assessed from the date of the violation.
    3. No penalty shall be assessed until the person alleged to be in violation or their appointed agent is served by registered mail, certified mail-return receipt requested, personal service notice of violation or any other means authorized under N.C Gen. Stat. §1A-1, Rule 4.
    4. The notice shall specify a time by which the person must comply with this Article or any regulation, rule or order, duly adopted pursuant to this Article and inform the person of the actions that need to be taken to comply and shall direct the violator to either pay the assessment or contest the assessment within 30 days by filing a petition for a contest case under N.C. Gen. Stat. Chapter 150B, Article 3.
    5. In setting the time for compliance, the City shall take into consideration the quantity and complexity of the work, the consequences of delay, the effectiveness of action taken by the violator and the staff investigative costs, but in no event shall the specified time limits be more than 10 consecutive calendar days for compliance, except a shorter time period may be required by the City inspector for an imminent threat to either severely degrade a watercourse or cause severe off-site sedimentation.
    6. The notice shall state that failure to correct the violation within the specified time period will result in the additional civil and criminal penalties for a continuing violation. If, after the allotted time period has expired, corrective action has not been completed, the additional civil penalties shall be assessed from the date of the initial violation. Each day of continuing violation thereafter shall constitute a separate violation.
    7. The Revenue Collector of the City shall make written demand for payment upon the person in violation and shall set forth the amount of the penalty and the reason for assessing the penalty; the Revenue Collector, for continuous violations, shall send within each 10 day period additional notice to the person in violation.
    8. Notice of the assessment shall be by registered or certified mail or any other means authorized under N.C. Gen. Stat. §1A-1, Rule 4. If the payment is not received within 30 days after demand for payment is made, the matter shall be referred to the City Attorney for institution of a civil action in the name of the City, in the appropriate division of the general court of justice in Wake County for recovery of the penalty. Such civil actions must be filed within 3 years of the date the assessment was due.
    9. Civil penalties collected pursuant to this provision shall be used or disbursed as directed by law.
  2. Stop-Work
    A stop-work order may be issued if a land-disturbing activity is being conducted or was conducted in violation of this Article, any regulation, rule or order duly adopted pursuant to this Article or is being undertaken or continued for which a soil erosion and sedimentation control plan is required except in accordance with the terms, conditions and provisions of an approved plan and that either:
    1. The land-disturbing activity is being conducted without an approved plan, a permit or both;
    2. The violation endangers life, property or both or that such endangerment is imminent; and
    3. The land-disturbing activity is being conducted without installing all protective measures in accordance with the approved soil erosion and sedimentation control plan.
    4. All stop-work orders shall be in writing served on and directed to the person doing the work and shall state the specific work to be stopped, the specific reasons for the stoppage and the conditions under which the work may be resumed. The stop-work order shall be rescinded by written notice if all the violations for which the stop-work order were issued are corrected, no other violations have occurred and all measures necessary to abate the violations have been taken.
  3. Criminal Penalties
    Any person who knowingly or wilfully violates any provision of this Article, rule, regulation, order duly adopted or issued pursuant to this Article or who knowingly or willfully undertakes or continues a land-disturbing activity for which an erosion control plan is required, except in accordance with the terms, conditions and provisions of an approved plan, shall be guilty of a misdemeanor punishable by imprisonment not to exceed 90 days or by a fine not to exceed $5,000 or both, in the discretion of the court.
  4. Injunctive Relief
    1. Whenever the City Council has reasonable cause to believe that any person is violating or threatening to violate this Article or rule, regulation, order duly adopted or issued pursuant to this Article or any term, condition or provision of an approved soil erosion and sedimentation control plan, the City may, either before or after the institution of any other action or preceding authorized by this UDO, institute a civil action in the name of the City for injunctive relief to restrain the violation or threatened violation. The action shall be brought in the Superior Court of Wake County.
    2. 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 shall not relieve any party to the proceeding from any civil or criminal penalty prescribed for violations to this UDO.
  5. Restoration
    Any person who undertakes a land-disturbing activity and who fails to retain sediment generated by the activity, as required by N.C. Gen. Stat. §113A-57(3), is required to restore the waters and land affected by the failure so as to minimize the detrimental effects of the resulting pollution by sedimentation. This authority is in addition to any other civil or criminal penalty or injunctive relief authorized under this section.
  6. Specific Civil Penalties
    Civil penalties for specific violations of this Article shall be assessed as follows:
    1. Grading without a permit. $5,000 per day for failure to secure a valid required grading permit prior to conducting a land-disturbing activity.
    2. Grading beyond the limits of a grading plan. $1,000 per day per 1/10 of a graded acre beyond the limits of an existing grading permit without the approval of an amended grading permit, but not to exceed $7,000 per day.
    3. Failure to protect. $5,000 per day for failure to take all reasonable measures to protect public property or private property, from damage caused by the failure to retain sediment on-site for the design storm.
    4. Failure to follow plan. $3,000 per day for failure to conduct a land-disturbing activity in accordance with the provisions of an approved erosion and sedimentation control plan.
    5. Failure to install devices. $5,000 per day for failure, when more than 1 acre is disturbed, $2,500 per day when 1 acre or less than 1 acre is disturbed, to install erosion and sedimentation control devices sufficient to retain the sediment generated by the land-disturbing activity within the boundaries of the tract(s) and prevent off-site sedimentation.
    6. Failure to maintain permanent and/or temporary measures. $2,500 per day for failure to maintain adequate erosion control measures.
    7. Failure to properly maintain slopes and fills. $2,500 per day for failure on graded slopes and fills to maintain an angle sufficient to retain vegetative cover or other adequate erosion control measures.
    8. Failure to protect exposed slopes. $2,500 per day for failure, within 15 working days or 30 calendar days of completion of any phase of grading, whichever period is shorter, to plant or otherwise provide exposed, graded slopes or fills with ground cover, devices or structures sufficient to restrain erosion.
    9. Failure to provide adequate cover. $2,500 per day for failure on a tract when more than 1 acre is disturbed, $1,200 dollars per day when 1 acre or less than 1 acre is disturbed, to plant or otherwise provide ground cover sufficient to restrain erosion within 15 working days or 60 calendar days, whichever period is shorter, following completion of construction or development.
    10. Failure to revise plan. $2,500 per day for failure to file an acceptable, revised erosion and sedimentation control plan within the established deadline after being notified of the need to do so.
    11. Failure to correct a violation after notice. $5,000 dollars per day for failure to correct a violation within the time limitations established in a notice of violation.
    12. Failure to obey a stop-work order. $5,000 per day for a violation of a stopwork order.
    13. Any other action or failure to act that constitutes a violation of this Article. $2,500 per day for any other action or failure to act that constitutes a violation of this Article.
    14. Failure to keep dirt and mud off public streets. $1,000 per day for failure to prevent the accumulation of dirt, mud or both on public streets in violation of this Article plus 1 dollar per every 6 linear feet of street if cleaned by the City, its employees or its contractors.
    15. An additional civil penalty of $1,000 per day shall be charged to any person assessed a civil penalty for any violation of this Article within the prior 2 years. No initial civil penalty shall exceed $7,500; this limitation shall be inapplicable to continuous violations.