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HomeMy WebLinkAboutORD 1995-132 1994-1996COUNTY OF HAWALI . STATE OF HAWAII llo BILL NO. - (Draft 4) ORDINANCE NO. 95 132 AN ORDINANCE AMENDING CHAPTER 25 OF THE HAWAII COUNTY CODE RELATING TO ENFORCEMENT OF ZONING VIOLATIONS. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Purpose. The enforcement of violations of the zoning code has become both cumbersome and costly. As a result, many such violations continue unabated. The Legislature has recognized this problem and has given to the counties the power to enact ordinances establishing civil and criminal fines and penalties. The Legislature has also given the county zoning agencies the power to impose the civil fines and penalties, after affording violators the opportunity for a hearing. Further, in 1993, the Legislature, by the passage of Act 168 allowed unpaid civil fines to be treated in the same manner as other taxes, fees, or charges for purposes of collection. This ordinance is intended to establish a procedure meeting the need for efficient enforcement, while protecting the due process rights of alleged violators. SECTION 2. Chapter 25, Article 1, Division 2, Sections 25-15 through 25-16 of the Hawaii County Code are amended to read as follows: Section 25-15 civil action. Criminal prosecution. [Acts Prohibited; (a) Any building or structure or other improvement or development set up, erected, constructed, altered, enlarged, converted, moved, or maintained contrary to the provisions of this chapter or any use of land contrary to the provisions of this chapter is unlawful and a public nuisance. (b) The corporation counsel shall, upon order of the council, immediately commence action or proceedings for the abatement, removal and enjoinment of the unlawful building, structure, improvement, development, or use and shall take such other steps and apply to such courts as may have jurisdiction to grant such relief, as will abate and remove the unlawful building, structure, improvement, development or use, and restrain and enjoin any person from setting up, erecting, building, maintaining, or using the unlawful building, structure, improvement or development, or using any property contrary to the provisions of this chapter.] (a) Anv person whether as principal anent, employee, or otherwise violating or causing or permitting the violation of any of the provisions of this chapter shall be guilty of a violation and upon conviction thereof shall be sentenced as -2- follows: (1) For a first offense, by a fine not exceeding 5500. (2) For a subsequent conviction which occurs within five years of any prior conviction for violation of this chapter, by a fine of not less than 5500 but not exceeding 51,000. (b) After a conviction for a first violation under this chapter, each further day of violation shall constitute a separate offense if the violation is a continuance of the subject of the first conviction. (c) The imposition of a fine under this section shall be controlled by the provisions of the Hawaii Penal Code relating to fines, sections 706-641 through 706-645, Hawaii Revised Statutes. (d) Any authorized personnel may issue a summons or citation to an alleged violator in accordance with the procedure specified in this section. Nothing in this section shall be construed as barring such authorized personnel from initiating prosecution b~oenal summons by complaint by warrant or such other judicial process as is permitted by statute or rule of court. (e) Any authorized personnel issuing a summons or citation for a violation of this chapter may take the name and address of the alleged violator and shall issue to the alleged violator a -3- written summons or citation notifying the alleged violator to answer at a place and at a time provided in the summons or citation. {f) There shall be provided for use by authorized personnel a form of summons or citation for use in citing violators of this chapter which does not mandate the physical arrest of such violators. The form and content of such summons or citation shall be as adopted or prescribed by the administrative iudae of the district court and shall be printed on a form commensurate with the form of other summonses or citations used in modern methods of arrest. so designed to include all necessary information to make the same valid under the laws and regulations of the State of Hawaii and the County of Hawaii. (g) In every case when a citation is issued, the original of the same shall be given to the violator. provided that the administrative judge of the district court may prescribe the iving to the violator a carbon copy of the citation and provide for the disposition of the original and any other copies. (h) Every citation shall be consecutively numbered and each carbon copy shall bear the number of its respective original. Section 25- Authorized Personnel. For the purpose of this article "authorized personnel" shall be a police officer or -4- a person(s) authorized in writing by the planning director (a) Right of Entry. When it is necessary to make an inspection to enforce the provisions of this chapter or when the authorized personnel has reasonable cause to believe that there exists upon a building or upon a premises of a lot a condition which is contrary to or in violation of this chapter which makes the building or premises of the lot unsafe. dangerous or hazardous, the authorized personnel may enter the building or premises of the lot at reasonable times to inspect or to perform the duties imposed by this chapter, provided that if such buildincior premises be occupied that credentials be presented to the occupant and entry requested. If such building or premises be unoccupied, the authorized personnel shall first make a reasonable effort to locate the owner or other person having charge or control of the buildina or premises and request entry. If entry is refused. the authorized personnel shall have recourse to the remedies provided by law to secure entry. {b) Liability. The authorized personnel charged with the enforcement of this chapter. acting in good faith and without malice in the discharge of the duties required by this chapter or other pertinent law or ordinance shall not thereby be rendered personally liable for damages that may accrue to persons or -5- property as a result of an act or by reason of an act or omission in the discharge of such duties A suit brought against the authorized personnel because of such act or omission performed by the authorized personnel in the enforcement of anv provision of this chanter or other pertinent laws or ordinances implemented through the enforcement of this chapter shall be defended by this jurisdiction until final termination of such proceedings and anv_ judgement resulting therefrom shall be assumed by this jurisdiction. Section 25-16. Injunctive action. [Penalties. (a) Any other person whether as principal, agent, employee, or otherwise, violating or causing or permitting the violation of any of the provisions of this chapter, shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced to a fine of not more than $500. (b) After conviction a person shall be deemed to be guilty of a separate offense for each and every day during which any violation of this chapter is committed, continued, or permitted by such person and shall be punished as herein provided.] The Count~maY maintain an action for an injunction to restrain any violation of the provisions of this chapter and may take any other lawful action to prevent or remedy any violation." -6- SECTION 3. Chapter 25, Article 1, Division 2, is amended by adding a new section to read as follows: "Section 25-16.1. Administrative enforcement. (a) In lieu of or in addition to enforcement pursuant to sections 25-15 and 25-16. if the director determines that anv person is violating anv provision of this chapter anv rule adopted thereunder or any permit issued pursuant thereto the director may have the person served. by personal service with a notice of violation and order pursuant to this section {b) The notice of violation shall include at least the following information: (1) Date of the notice: (2) Name and address of the person noticed: (3) Section number of the provision or rule. or the permit which has been violated; (4) Nature of the violation; and (5) Location and time of the violation. (c) The order may require the person to do any or all of the following: (1) Cease and desist from the violation: (2) Correct the violation at the person's own expense before a date specified in the order; -7- {3) Parma civil fine not to exceed 5500 in the manner, at the place and before the date specified in the order; (4) Pay a civil fine not to exceed 5500 per day for each day in which the violation persists, in the manner and at the time and place specified in the order. (d) The order shall advise the person that the order shall become final thirty davs after the date of its personal service unless the director's decision is appealed to the board of appeals within the thirty-day period. (e) The provisions of the order issued by the director under this section shall become final thirty davs after the date of the personal service of the order, unless the director's action is appealed to the board of appeals as provided in this section. (f) Any person adversely affected by any order issued under this section maX within thirty days after the personal service of the order appeal the order to the board of appeals as provided by section 5-6 3 of the County Charter and sections 25-7 and 25-8 and of this chapter provided, however, that the board of appeals shall not be limited in its review of the director's order to the standards for affirming. reversing or modifying the director's decision contained in section 25-7. An -S- appeal to the board of appeals shall stay the provisions of the director's order pending the final decision of the board of appeals. (a) The director may institute a civil action in anv court of competent jurisdiction for the enforcement of anv order issued pursuant to this section. Where the civil action has been instituted to enforce the civil fine imposed by said order, the director need only show that the notice of violation and order were served. that a civil fine was imposed, the amount of the civil fine imposed and that the fine imposed has not been paid. (h) Annually, on September 1, the director shall file with the bureau of conveyances, liens on all properties which have been the subject of fines levied under this section, which remain unpaid for one 5%ear or more after final adjudication and the expiration of the time for andfurther appeal. (i) Fines assessed under this section shall constitute a lien upon the subject property upon the filincx of said lien with the bureau of conveyances. This lien shall be considered. for purposes of priority to be the equivalent of liens which arise pursuant to the provisions of chapter 19 of this code." SECTION 4. Material to be repealed is bracketed. New material is underscored. In printing this ordinance, the -9- material is underscored. In printing this ordinance, the underscoring, brackets and bracketed material need not be included. SECTION 5. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provision or applications of the ordinance which can be given effect without the invalid provision or application, and to this end, the provision of this ordinance are declared to be severable. SECTION 6. This ordinance shall take effect upon its approval. Hilo, Hawaii INTRODUCED BY: R COUNCIL MEMBE COUNTY O HAWAII Date of Introduction: August 2, 1995 Date of 1st Reading: August 2, 1995 Date of 2nd Reading: October 18, 1995 Date of 3rd Reading/Reconsideration: November 1, 1995 Effective Date: November 13, 1995 FsEFERE~lCE: Comm: 5 Z,~, 4,,,,,~„~,,,~„ .A??'R~~QlE1J as '~ --COUfJT'f CF H.a'."d.;ll ~ , -10- OFFICE OF THE COUNTY CLERK County of Hawaii Hilo .Hawaii Introduced By: Takashi Domingo Date Introduced: August 2, 1995 First Reading: August 2, 1995 Published: August 10 , 19 9 5 REMARKS: ROLL CALL VOTE AYES NOES ABS EX Arakatd }{ Bonk-Abramson }{ Childs X De Lima X Domingo X Osorio X ~~ X Ray X Smith X 8 0 1 0 (DRAFT 31 Second Reading: To Mayor: Returned: Effective: Published REMARKS: Am ndc o Draf df rrad nn Council level - 09/20/95 ROLL CALL VOTE AYES NOES ABS EX Arakaki X Bonk-Abramson X Childs X De Lima Domingo X Osorio X Rath X Ray X Smith X 9 0 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. COUNCIL CHAIRMAN Approved/Biewp~}y~ered this of /t/6Gk:~::i~ ~i.~'~ day 195~~. COUNTY CLERK ~~ MAYOR, COUNTY O}' I~WAII Bill No.: Reference: Ord. No.: T 110 (DRAFT 4) C-524;C-524.04/PC-62 OFFICE OF THE COUNTY CLERK County of Hawaii Hilo Hawaii Introduced By: Date Introduced: First Reading: Published: REMARKS: Third Reading: c~~y~, ~ November 1, 1995 To Mayor: November 2, 1995 Returned: November 13, 1995 Effective: November 13, 1995 Published November 20, 1995 REMARKS: Reconsidered Bill 110, Draft 3 - 11/O1/95 ROLL CALL VOTE ..AYES NOFS ABS EX Arakaki Bonk-Abramson Childs De Lima Domingo Osorio Rath Ray s~ (DRAFT 4) ROLL CALL VOTE AYES NOES ABS EX Arakaki X Bonk-Abramson X Childs X De Lima X Domingo ){ Osorio X Rath X ~y X Smith X 9 0 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. _ ~.~~ COUNC~IL~C~/~IRMAN CO/jdG9~l~"' " CLERK~~ Approved/Dirxplrro+rd this / 3 day of nleV • . 19~L. Bi11No.: 110 (DRAFT 4 Reference: C-524;C-524.04/PC-62 Ord. Nn.: 95 13