ORD 2023-02, TITLE 9.01.010-Adminstrative Code Enforcement
EXHIBIT A
This Title shall be known as the “Administrative Code Enforcement” or “ACE” program. This Title shall also be known as Title 9.01 of the Leeds Municipal Code. It may be cited and pleaded under either designation.
9.01.020 Purpose And Introduction
The Town Council finds that the enforcement of the Leeds Municipal Code and applicable state codes is an important public activity. Code enforcement is vital to the protection of the public’s health, safety, welfare, and quality of life. The Town Council recognizes that code enforcement is effective only when done fairly and consistently. The Town Council further finds that an enforcement system that allows a combination of judicial and administrative and judicial remedies is effective in correcting a Violation, as hereinafter defined.
The Town may enforce a Violation as allowed by law, including, but not limited to, enforcement via two primary methods: (1) administrative actions, and (2) judicial actions in the form of civil or criminal procedures.
Administrative code enforcement attempts to resolve a Violation without the use of litigation in a judicial court system. Administrative code enforcement is generally a “first-resort” enforcement tool, mostly an informal process and typically faster and less costly than judicial remedies. Failure to comply with an administrative code enforcement action may require the Town Attorney to file a judicial action to gain compliance.
Civil and criminal judicial remedies for code enforcement are characterized by, for example, a judge, attorneys, an official courtroom and other formal procedures related thereto.
A civil judicial case involves the determination of whether a party was injured/harmed and how much the party should be compensated for the same. General consequences of a civil case are monetary punishments in the form of fines and/or an order to do or cease to do something.
A criminal judicial case involves a government entity or other entity endowed with law enforcement powers arresting and trying someone in a court of law for a crime that was committed. Typical consequences of a criminal case are jail time, monetary punishments in the form of fines and a misdemeanor or felony charge being placed on the guilty party’s permanent record.
The provisions of this Title may be applied to all – Violations that occur within Leeds Town limits and such territory outside Leeds Town limits over which the Town has jurisdiction or control by virtue of any constitutional provision or law. This Title establishes an additional remedy – administrative code enforcement – that may be used by the Town to achieve compliance with applicable codes. No remedy provided herein is intended to be exclusive and shall be in addition to any other remedy given to the Town here under or now or hereafter existing at law.
While the Town’s population remains relatively small and its administrative staffing resources are limited, it anticipates that most, if not all, of this administrative code enforcement program will be reactive in operation – responding to inquiries, complaints, etc. submitted to the Town by citizens and others. As the Town’s population grows and its administrative staffing levels expand, it projects that the operation of this administrative code enforcement program may become more proactive in nature – Enforcement Officials (as hereinafter defined) or others patrolling the Town actively identifying Violations and pursuing their correction. The preceding sentences in this paragraph shall not limit the Town’s operation of this administrative code enforcement program; it, at its sole discretion, may carry out this administrative code enforcement program reactively, proactively or in any and all other manners pursuant to this Title at any and all times. For example, the Town’s operation of this administrative code enforcement program primarily in a reactive manner shall not limit or prohibit the Town from proactive administrative code enforcement efforts and vice versa.
9.01.040 Existing Law Continued
The provisions of this Title shall not invalidate any other title, chapter, or ordinance of the Leeds Municipal Code, but shall be read in conjunction with those titles, chapters, and ordinances and shall be used as an additional remedy for enforcement of violations thereof.
9.01.050 Criminal Prosecution Right
The Town shall have sole discretion in deciding whether to file a civil or criminal judicial case or pursue an administrative enforcement action for a Violation. The enactment of this Title shall not be construed to limit the Town’s right to prosecute Violations as a criminal offense. The Town may use any of the remedies available under the law in both civil and criminal prosecution.
Although most Violations may be enforced through this Title, the following circumstances are examples of when the Town may choose to pursue criminal prosecution. This list provides potentially common situations for criminal prosecution; however, the list is not comprehensive and does not limit in any way the Town’s right to prosecute a Violation as a criminal offense.
- The Responsible Person, as hereinafter defined, has one prior Violation within the last year.
- The Violation caused bodily injury, substantial bodily injury, or serious bodily injury to an individual, all of which shall have the same definition as in Utah Code.
- The Responsible Person, in a single criminal episode, violated one or more provisions of the Utah Criminal Code as well as one or more provisions of the Leeds Municipal Code, and all violations are being charged as a single criminal episode as defined in Utah Code.
- The Responsible Person is being charged with any violation of the Leeds Municipal Code.
- The Violation caused substantial property damage or a significant health or safety risk to the public.
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The failure of a Responsible Person to comply with the terms, conditions, requirements, deadlines, etc. of an Administrative Notice (as hereinafter defined), Administrative Enforcement Order (as hereinafter defined) or any other order or notice issued pursuant to this Title.
Title, chapter, and section headings contained herein shall not be deemed to govern, limit, modify, or in any manner affect the scope, meaning, or intent of the provisions of this Title.
If any section, subsection, sentence, clause, phrase, portion, or provision of this Title is, for any reason, held to be invalid or unconstitutional by the decision of any court or competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Title. The Town Council hereby declares that it would have adopted this Title and each section, subsection, sentence, clause, phrase, portion, or provision thereof, irrespective of the fact that any one or more sections, subsections, clauses, phrases, portions, or provisions be declared invalid or unconstitutional. This section shall apply to all amendments made to this Title.
By establishing performance standards or by establishing obligations to act, it is the intent of the Town Council that Leeds Town employees and officers are exercising discretionary authority in pursuit of an essential governmental function and that any such standards or obligations shall be construed as creating a ministerial duty for purpose of tort liability.
9.01.090 General Rules Of Interpretation
For purposes of this Title:
- “Shall” is mandatory; “may” is permissive.
- Unless otherwise specified, the terms “hereof,” “herein,” and similar terms refer to this Title as a whole.
- Words of the masculine gender mean and include correlative words of the feminine and neuter genders, and words indicating a singular number mean and include the plural number and vice versa.
9.01.100 Definitions Applicable To Title Generally
In the construction of this Title, the following words and phrases shall be as defined as set forth in this section unless a different meaning is specifically defined elsewhere in this Title and specifically stated to apply:
“Administrative Notice” means a citation issued to a Responsible Person that gives reasonable Notice of a Violation and the civil penalty for such Violation.
“Administrative Enforcement Order” means an order issued by a Hearing Officer. The order may include an order to abate the Violation, pay civil penalty and administrative costs; or any other action as authorized or required by this Title and applicable state codes.
“Administrative Enforcement Hearing” means a hearing held pursuant to the procedures established by this Title and at the request of a Responsible Person charged with a Violation.
“Town” means the Town of Leeds, Utah, including the Mayor, Town Administrator, and all other employees of the Town.
“Town Council” means the Town Council of Leeds Town.
“Day” refers to calendar days.
“Director” means an individual(s) as designated by the Mayor’s Office.
“Enforcement Official” means any person authorized by the Town to determine and enforce a Violations of the Leeds Municipal Code or applicable state codes including, but not limited to the Director, zoning officials, police officers, building inspection officials, code enforcement officers, fire marshal, fire officers, and animal control officers.
Hearing Officer” means a natural person appointed by the Mayor or his/her designee to preside over Administrative Enforcement Hearings.
“Imminent Life Safety Hazard” means any condition that creates a serious and immediate danger or damage to life, property, health, or public safety.
“Mayor” means the mayor of Leeds Town.
“Notice of Compliance” means a document or form issued and approved by the Director that indicates that a Violation has been corrected.
“Notice of Emergency Abatement” means a Written notice that informs a Responsible Person of emergency abatement actions taken by the Town, and the costs of those actions, and orders payment for those costs.
“Notice of Itemized Bill for Costs” means a Written notice, itemizing the Town’s costs and ordering payment of those costs.
“Notice of Violation” means a Written notice that informs a Responsible Person of a Violation and orders certain remedial steps to correct said Violations.
“Person” means any natural person, firm, joint venture, joint stock company, partnership, association, club, company, corporation, trust, organization, or the manager, lessee, agent, sergeant, officer, or employee of any of them, or any other entity, including public bodies, that is recognized by law as the subject of rights or duties.
“Personal Service” means the method of service for any notice or document that is performed by, in-person meeting or any other form of in-person or person-to-person communication, including those promulgated by Utah Rules of Civil Procedure Rule 4.
“Property Owner” means the record owner of real property as shown on the records of the Washington County assessor/recorder.
“Responsible Person” means the Person(s) determined by the Town who is responsible for causing or maintaining a Violation. The term Responsible person shall include, but is not limited to, a property owner, agent, tenant, lessee, occupant, architect, builder, contractor, or other Person who individually or together with another Person is responsible for a Violation.
“Title” means this title of the Leeds Municipal Code, the “administrative code enforcement” program, or the “ACE” program.
Violation” means any condition caused, maintained, or permitted to exist in violation of any provision, statute, or requirement of the Leeds Municipal Code or applicable state codes.
“Warning Notice” means a Written notice that, on a courtesy basis, informs a Responsible Person of a Violation, requests that the Violation be corrected within a certain time frame, and warns that further enforcement action may be taken if the Violation is not corrected as and when specified in the Warning Notice.
Written” or “Writing” includes handwritten, typewritten, photocopied, computer printed, or facsimile.
9.01.110 Acts Include Causing, Aiding, And Abetting
Whenever any act or omission is made unlawful in this Title, it shall include causing, permitting, aiding, or abetting such act or omission.
9.01.120 Notice And Service Requirements
- Notices required to be given under this Title shall be in the English language.
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Whenever-service is required to be given under this Title, service shall be made by any of the methods listed below, unless different provisions are otherwise specifically stated to apply. Personal Services should be tried before serving notice in the other methods indicated below.
- Personal Service
- Regular or Certified mail, postage prepaid, to the last known address of a Responsible Person.
- Posting the notice conspicuously on or in front of the property. If the property is not inhabited, then the notice must also be mailed. The form of the posted notice shall be approved by the Director.
- Publish in a newspaper of general circulation if and only if: the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence; service is impracticable under the circumstances; or there exists good cause to believe that the Person to be served is avoiding service.
- Service by regular mail in the manner set forth above shall be deemed served on the seventh day after the date of mailing when mailed in the continental United States. Service by regular mail to all other addresses shall deemed served on the tenth day after the date of mailing.
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If service complies with the requirements of this section, it shall be deemed a valid service even if a party claims to have not received the service and it shall not affect the validity of any proceedings taken under this Title.
- The failure of a Person, other than a Responsible Person, to be served in accordance with this section shall not affect the validity of any proceedings here under.
- Whenever a document is recorded with the county recorder as authorized or required by this Title or applicable state codes, recordation shall provide constructive notice of the information contained in the recorded documents.
9.01.130 General Enforcement Authority
Whenever an Enforcement Official finds that a Violation has occurred or continues to exist, he/she may undertake any of the procedures herein. Enforcement Officials have the authority to gain compliance with the provisions of the Leeds Municipal Code and applicable state codes subject to the provisions of this Title. Such authority shall include the power to issue Notices of Violation and Administrative Notices, inspect public and private property, abate public and private property, and to use any remedy available under this Title or law, including, but not limited to, judicial and administrative remedies.
9.01.140 Adoption Of Policy And Procedures
The Mayor is authorized to develop policies and procedures relating to the hearing procedures, scope of hearings, subpoena powers, and other matters relating to the Administrative Code Enforcement program.
Enforcement Officials are hereby authorized, in accordance with applicable law and with cause, to enter upon any property or premises to ascertain whether the provisions of the Leeds Municipal Code or applicable state codes are being obeyed and to make any reasonable, lawful examination or survey necessary in the performance of enforcement duties, including, but not limited to, determining compliance with the Leeds Municipal Code or applicable state codes. This may include the taking of photographs, samples, or other physical evidence. All inspections, entries, examinations, and surveys shall be done in a reasonable manner based upon cause. If a Property Owner or Responsible Person refuses to allow an Enforcement Official to enter property, the Town shall obtain a search warrant before entering the property.
9.01.160 False Information Or Refusal Prohibited
It shall be unlawful for any Person to willfully make a false statement or refuse to give his or her name or address with intent to deceive or interfere with an Enforcement Official when in the performance of official duties under the provisions of this Title. A violation of this section is a Class B misdemeanor.
9.01.170 Failure To Obey A Subpoena
It shall be unlawful for any Person to willfully refuse or fail to obey a subpoena issued for an Administrative Enforcement Hearing. Failure to obey a subpoena may constitute contempt and may be prosecuted as a class B misdemeanor.
The Director or any designated Enforcement Official is authorized to arrest, without a warrant, any Person whenever there is reasonable cause to believe that the Person has committed a Violation in the Enforcement Official’s presence. The Director or Enforcement Official can arrest a person only by issuing a misdemeanor citation or Administrative Notice.
Unless otherwise stipulated by a Town-wide records retention policy, the Town will keep all records it creates or receives regarding proceedings under this Title as follows:
- Written communications and interoffice records for three (3) years and
- All other records for a minimum of three (3) years.
9.02 Adminstrative Code Enforcement Procedures
9.02.010 Administrative Notice
9.02.020 Notice Of Violation
9.02.030 Emergency Abatement
9.02.040 Administrative Code Enforcement Hearing
9.02.010 Administrative Notice
9.02.010.1 Purpose And Authority
9.02.010.2 Procedures For Administrative Notices
9.02.010.3 Contents Of Administrative Notice
9.02.010.4 Civil Penalties Assessed
9.02.010.5 Inspections And Compliance
9.02.010.1 Purpose And Authority
The Town Council finds that there is a need for a method of enforcement for Violations that are minor in nature and not initially or generally desirable to be abated by the Town (if such abatement action is or becomes necessary). The Town Council further finds that an appropriate alternative method of enforcement for Violations of this nature is by Administrative Notice. Violations not of this nature may generally be enforced by procedures associated with a Notice of Violation, which are described in Section 17.02.020 herein. The procedures established in this subsection shall be an alternative and in addition to other administrative enforcement, including, but not limited to, a Notice of Violation; criminal; civil; or any other legal remedy established by law that may be pursued to address Violations. The utilization of an Administrative Notice is at the sole discretion of the Town.
An Enforcement Official may issue an Administrative Notice to a Responsible Person for a Violation. A civil penalty shall be assessed by means of an Administrative Notice issued by the Enforcement Official, and shall be payable directly to the Town Treasurer’s Office. Penalties assessed by means of an Administrative Notice shall be collected in accordance with the procedures specified in the remedies section of this Title.
9.02.010.2 Procedures For Administrative Notices
Upon discovering a Violation that the Town may deem to be minor in nature and not initially or generally desirable to be abated by the Town, the Town may issue an Administrative Notice to the Responsible Person.
- An Enforcement Official shall attempt to serve an Administrative Notice to the Responsible Person via Personal Service. When Personal Service is successful, the Enforcement Official should document the service of the Administrative Notice. If Personal Service is unsuccessful, then an Enforcement Official shall immediately serve the Administrative Notice on the Responsible Person via any of the other methods provided for in this Title.
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The Enforcement Official shall attempt to obtain the signature of the Responsible Person on the Administrative Notice. If the Responsible Person refuses or fails to sign the Administrative Notice, such failure or refusal shall not affect the validity of the Administrative Notice and subsequent proceedings.
- A Responsible Person has the right to an Administrative Enforcement Hearing concerning the Administrative Notice.
- More than one Administrative Notice may be issued against the same Responsible Person if the additional Administrative Notice encompasses different dates or different Violations.
9.02.010.3 Contents Of Administrative Notice
Each Administrative Notice shall contain the following information:
- The date, location, and explanation of all Violations;
- Code sections violated;
- The amount of the civil penalty imposed for each Violation;
- An explanation of how the civil penalty shall be paid, the time period in which the civil penalty shall be paid, and the consequences of failure to pay the civil penalty;
- Identify the right to and the procedures for requesting an Administrative Enforcement Hearing;
- A demand that the Responsible Person cease and desist from further action causing the Violation and commence and complete all action to correct the Violation as directed by the Town; and
- The signature of the Enforcement Official and, if possible, the signature of the Responsible Person.
9.02.010.4 Civil Penalties Assessed
- Civil penalties shall be due and payable immediately upon service of an Administrative Notice.
- The civil penalty for each Violation listed on the Administrative Notice shall be as identified in the Town’s fee schedule.
- Civil penalties shall be double (i) if they are paid after sixty (60) Days of the date of the Administrative Notice or (ii) if the Violation remains uncorrected after sixty (60) Days of the date of the Administrative Notice.
- Civil penalties shall be triple (i) if they are paid after sixty (120) Days of the date of the Administrative Notice or (ii) if the Violation remains uncorrected after sixty (120) Days of the date of the Administrative Notice.
- Payment of any civil penalty shall not excuse a failure to correct a Violation or any recurrence of the Violation, nor shall it bar further enforcement action by the Town.
- Civil penalties shall be paid to the Leeds Town Treasurer.
9.02.010.5 Inspections And Compliance
It shall be the duty of the Responsible Person to request an inspection to be performed by the Town when a Violation cited by Administrative Notice has been corrected. If no inspection is requested, then it shall be deemed prima facie evidence that the Violation remains uncorrected. If more than one inspection is necessary, an inspection fee shall be assessed for each subsequent inspection.
A Violation is recognized as corrected and resolved only upon the issuance by the Town of a Notice of Compliance.
9.02.020.1 Authority
9.02.020.2 Procedures For Notices Of Violation
9.02.020.3 Inspections And Compliance
9.02.020.4 Failure To Correct
Any Violation may be abated by the Town pursuant to the procedures set forth in this chapter. However, the method of enforcement described in this chapter is typically for, but not limited to, Violations that are major in nature, found to exist on real property, and generally desirable to be abated by the Town (if such abatement action is or becomes necessary). Violations less in nature than this may generally be enforced by procedures associated with an Administrative Notice, which are described in Section 17.02.010 herein. The procedures established in this chapter shall be an alternative and in addition to other administrative enforcement, including, but not limited to, an Administrative Notice; criminal; civil; or any other legal remedy established by law that may be pursued to address Violations. The utilization of a Notice of Violation is at the sole discretion of the Town.
9.02.020.2 Procedures For Notices Of Violation
Whenever an Enforcement Official determines that a Violation that is major in nature and generally desirable to be abated by the Town (if such abatement action is or becomes necessary) has occurred or continues to exist, the Town may issue a Notice of Violation to the Responsible Person.
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An Enforcement Official may serve a Warning Notice of such Violation on the Responsible Person. The Warning Notice should contain the information required in a Notice of Violation and provide ten (10) Days to correct the Violation.
- An Enforcement Official shall attempt to serve a Notice of Violation on the Responsible Person via Personal Service. When Personal Service is successful, an Enforcement Official should document the service of such notice.
- If Personal Service is unsuccessful, then an Enforcement Official shall serve the Notice of Violation on the Responsible Person via any of the other methods provided for in this Title.
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If the Violation continues on the eleventh Day after the Warning Notice, then an Enforcement Official shall serve a Notice of Violation on the Responsible Person. The Notice of Violation shall include the following information:
- Name of the Responsible Person.
- Street address or other generally accepted description of the location of Violation.
- Date Violation observed.
- Citation of all specific code sections applicable to the Violation and a description of the Violation
- All remedial action required to permanently correct any Violation, which may include corrections, repairs, demolition, removal, or other appropriate action.
- Specific date to correct the Violation.
- Explanation of the consequences should the Responsible Person fail to comply with the terms and deadlines as prescribed in the Notice of Violation, which may include, but is not limited to: civil penalties; revocation of permits; recordation of the Notice of Violation; withholding of municipal permits; abatement of the Violation; costs; administrative fees; criminal or civil prosecution; and any other legal remedies.
- Statement that civil penalties will begin to accrue immediately on expiration of the date to correct the Violation.
- The amount of the civil penalty for each Violation and a statement that the civil penalty shall accrue daily until the Violation is corrected.
- Statement that only one Notice of Violation is required for any 12-month period, and that civil penalties begin immediately upon any subsequent violations of the Notice of Violation. The Responsible Person may request an Administrative Enforcement Hearing on the renewed violations by following the same procedure as provided for the original notice.
- Demand that the Responsible Person cease and desist from further action causing the Violation and commence and complete all action to correct the Violations as directed by the Town.
- Procedures to request an Administrative Enforcement Hearing, and consequences for failure to request such hearing.
- Statement that when the Violation is brought into compliance, the Responsible Person must request an inspection to be performed by the Town and notice of reinspection fees, if re-inspection is required.
- More than one Notice of Violation may be issued against the same Responsible Person if the additional Notice of Violation encompasses different dates or different Violations.
- A Responsible Person has the right to an Administrative Enforcement Hearing concerning the Notice of Violation.
9.02.020.3 Inspections And Compliance
It shall be the duty of the Responsible Person to request an inspection to be performed by the Town when a Violation has been corrected. If no inspection is requested, then it shall be deemed prima facie evidence that the Violation remains uncorrected. If more than one inspection is necessary, an inspection fee in the amount indicated in the Town’s fee schedule shall be assessed for each subsequent inspection.
It shall be unlawful for any Responsible Person to fail to comply with the terms and deadlines set forth in a Notice of Violation. Failure by a Responsible Person to bring a Violation into compliance as and when specified in the Notice of Violation may result in, but limited to, any of the following:
- The assessment of civil penalties owed to the Town against the Responsible Person for each and every subsequent Day of Violation without additional notice to the Responsible Person required.
- Civil or criminal prosecution actions by the Town against the Responsible Person.
9.02.030.1 Authority
9.02.030.2 Procedures
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Whenever the Director determines that an Imminent Life Safety Hazard exists or any safety hazard that exists in accordance with the International Building Code, International Residential Code, the International Fire Code, and/or the Utah Health Code that requires immediate correction or elimination, the Director may exercise any or all of the following powers without prior notice to the Responsible Person:
- Order the immediate vacation of any tenants, and prohibit occupancy until all repairs and any other necessary remedial actions are completed;
- Post the premises as unsafe, substandard, or dangerous;
- Board, fence, or secure the building or site;
- Raze and grade that portion of the building or site to prevent further collapse, and remove any hazard to the general public;
- Make any minimal emergency repairs as necessary to eliminate any Imminent Life Safety Hazard; or
- Take any other action appropriate to eliminate the Imminent Life Safety Hazard.
- The Director may, based on probable cause, enter or otherwise gain necessary access to property without a search warrant or court order to accomplish the above-listed acts to abate the Imminent Life Safety Hazard.
- The Responsible Person shall be liable for all costs associated with the abatement of the Imminent Life Safety Hazard. Costs may be recovered pursuant to this Title.
- The Director shall pursue only the minimum level of correction or abatement necessary to eliminate the immediacy of a hazard. Costs incurred by the Town during the Imminent Life Safety Hazard abatement process shall be assessed and recovered against the Responsible Person, including property (real, personal, intangible or otherwise) that is associated with the subject Imminent Life Safety Hazard.
- The Director may also pursue any other administrative or judicial remedy to abate any remaining Violations (i.e. those that are deemed to not be Imminent Life Safety Hazards).
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Within ten (10) Days of completion of an abatement of an Imminent Life Safety Hazard, the Town shall serve the Property Owner or Responsible Person with a Notice of Emergency Abatement.
- A Responsible Person has the right to an Administrative Enforcement Hearing concerning the Notice of Emergency Abatement.
9.02.040 Administrative Code Enforcement Hearing
9.02.040.1 Purpose
9.02.040.2 Request For Administrative Enforcement Hearing
9.02.040.3 Notification Of Administrative Enforcement Hearing
9.02.040.4 Appointment And Qualifications Of Hearing Officer
9.02.040.5 Powers Of Hearing Officer
9.02.040.6 Procedures At Administrative Enforcement Hearing
9.02.040.7 Failure To Attend Administrative Enforcement Hearing
9.02.040.8 Administrative Enforcement Order
9.02.040.9 Failure To Comply With Administrative Enforcement Order
9.02.040.10 Appeal
It is the purpose and intent of the Town Council that any Responsible Person shall be afforded due process of law during the code enforcement process. Due process of law shall require adequate notice, an opportunity to request and to fully participate in any hearing, and an adequate explanation of the reasons justifying any resulting action. The following procedures are intended to establish a forum to determine if the cited Violation is valid, and if so to resolve and correct Violations fairly, in a timely manner, and efficiently while providing due process.
9.02.040.2 Request For Administrative Enforcement Hearing
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A Responsible Person served with one of the following documents or notices shall have the right to request an Administrative Enforcement Hearing. Such request shall be filed within ten (10) Days from the date of service of one of the following:
- Notice of Violation;
- Notice of Itemized Bill for costs;
- Notice of Emergency Abatement.
- Said request, including all information concerning the Responsible Person’s right to an Administrative Enforcement Hearing, shall be provided in English.
- The request for an Administrative Enforcement Hearing shall be made in writing to the Director.
- As soon as practicable after the Town’s receipt of the written notice of the request for an Administrative Enforcement Hearing, a Hearing Officer shall schedule a date, time, and place for the Administrative Enforcement Hearing.
- Failure to request an Administrative Enforcement Hearing within ten (10) Days from the date of service of any of the notices in subsection (A) of this section shall constitute a waiver of the right to an Administrative Enforcement Hearing. The right to appeal said failure may be waived by the Town upon showing proof of a verifiable extenuating circumstance.
- If a Responsible Person fails to request an Administrative Enforcement Hearing after being issued a Notice of Violation as provided herein, the corrective action detailed on the Notice of Violation shall be considered the Administrative Enforcement Order pursuant to this Title.
- As an alternative to subsection (f) of this section, if a Responsible Person fails to request an Administrative Enforcement Hearing as provided herein, such failure shall be considered a waiver by the Responsible Person of their right to said hearing and a default shall enter against the Responsible Person and the Town may seek to have an Administrative Enforcement Order issued by the Hearing Officer without further notice to the Responsible Person.
- If the Responsible Person fails to request a hearing before the expiration of the ten (10) Day deadline, the case may be set for a default hearing.
9.02.040.3 Notification Of Administrative Enforcement Hearing
Written notice of the date, time, and place of the Administrative Enforcement Hearing shall be served to the responsible person as soon as practicable prior to its date. The Hearing shall be conducted during regular Town business hours. The Notice of the Hearing shall be served not less than 72 hours prior to the Hearing.
9.02.040.4 Appointment And Qualifications Of Hearing Officer
- The Mayor or his/her designee shall appoint a Hearing Officer to preside at Administrative Enforcement Hearings.
- A Hearing Officer:
a. Shall have no personal, financial, or other conflict of interest in the matter for which the hearing is being held.
b. May not be a Town employee.
9.02.040.5 Powers Of Hearing Officer
- A Hearing Officer shall have authority to conduct an Administrative Enforcement Hearing for a Violation.
- A Hearing Officer may, for good cause shown by one of the parties or the Hearing Officer independently determines that due process has not been adequately afforded to such party, continue an Administrative Enforcement Hearing. The Hearing Officer must enter on the record the good cause on which a continuance is granted.
- At the Written request of any party to an Administrative Enforcement Hearing, a Hearing Officer may sign subpoenas for witnesses, documents, and other evidence where the attendance of the witness or the admission of evidence is deemed helpful or necessary by the Hearing Officer to decide issues at the Administrative Enforcement Hearing. All costs related to the subpoena, including witness and mileage fees, shall be borne by the party requesting the subpoena.
- The Hearing Officer has jurisdiction over the subject matter of an Administrative Enforcement Hearing for the purposes of granting a continuance, ordering compliance by issuing an Administrative Enforcement Order, ensuring compliance of that order, which includes authorizing the Town to enter and abate a Violation, modifying an Administrative Enforcement Order, or, where extraordinary circumstances exist, granting a new Administrative Enforcement Hearing.
- The Hearing Officer has jurisdiction over the subject matter of an Administrative Enforcement Hearing for the purposes of granting a continuance, ordering compliance by issuing an Administrative Enforcement Order, ensuring compliance of that order, which includes authorizing the Town to enter and abate a Violation, modifying an Administrative Enforcement Order, or, where extraordinary circumstances exist, granting a new Administrative Enforcement Hearing.
A Hearing Officer shall not make determinations as to the existence of nonconforming rights. If a Responsible Person claims a nonconforming right as a defense, the Hearing Officer shall continue the Administrative Enforcement Hearing and shall refer the matter to the appropriate Leeds Town Land Use Authority for a determination as to the existence of the nonconforming right. The Land Use Authority’s decision shall be binding. The Responsible Person shall bear the costs of the appeal petitions.
9.02.040.6 Procedures At Administrative Enforcement Hearing
- Administrative Enforcement Hearings are intended to be informal in nature. Formal rules of evidence and discovery shall not apply; however, an informal exchange of discovery may be requested. Any such request shall be written. Failure to request discovery shall not be a basis for a continuance. Complainant information shall not be disclosed or released unless the complainant is a witness at the hearing. The procedure and format of the Administrative Enforcement Hearing shall follow duly adopted policies and procedures.
- The Town bears the burden of proof to establish the existence of a Violation.
- Such proof shall be established by a preponderance of the evidence.
- Each party shall have the opportunity to call and cross-examine witnesses and present evidence in support of his or her case. A Written declaration signed under penalty of perjury may be accepted in lieu of a personal appearance.
- All Administrative Enforcement Hearings are open to the public and shall be recorded by the Town on a Town owned voice-recording device. At the discretion of the Hearing Officer, Administrative Enforcement Hearings may be held at the location of the Violation.
- The Responsible Person shall have the right to be represented at their own expense by an attorney. If an attorney will be representing a Responsible Person at a hearing, notice of the attorney’s name, address, and telephone number shall be given to the Town a least two Days prior to the hearing. If such notice is not given, the hearing may be continued at the Town’s request, and all costs of the continuance shall be assessed to the Responsible Person.
- The burden to prove any raised defenses shall be upon the party raising any such defense.
- No new hearing shall be granted, unless the Administrative Law Judge determines that extraordinary circumstances exist which justify a new hearing.
9.02.040.7 Failure To Attend Administrative Enforcement Hearing
A Responsible Person who fails to appear at an Administrative Enforcement Hearing shall be deemed to have waived the right to such hearing, the adjudication of issues related to the hearing, and the right to appeal, and such failure will result in a default judgment for the Town, provided that proper notice of the hearing has been given as provided in Section 7.01.120.
9.02.040.8 Administrative Enforcement Order
- A Responsible Person and the Town may enter into a stipulated agreement, which shall be signed by both parties, at any time. Such agreement shall be entered as an Administrative Enforcement Order (Question on this). Entry of such agreement shall constitute a waiver of the right to further Administrative Enforcement Hearings and the right to appeal.
- After all evidence and testimony are presented, the Hearing Officer shall issue a Written Administrative Enforcement Order within ten Days that affirms, modifies or rejects the notice or citation. The Hearing Officer may increase or decrease the total amount of civil penalties and costs that are due pursuant to the Town’s fee schedule and the procedures in this Title. Such fees shall continue to accrue until the Responsible Person complies with the Hearing Officer’s decision and corrects the Violation.
- A Hearing Officer may issue an Administrative Enforcement Order that requires a Responsible Person to cease and desist from violating the Leeds Municipal Code or applicable state codes and to take any necessary corrective action.
- A Hearing Officer may order the Town to enter the property and abate all Violations, including the removal of animals and any and all other personal property that are in Violation of applicable code requirements.
- A Hearing Officer may revoke a kennel permit, an animal license, or the right to possess animals as provided in the Leeds Municipal Code.
- As part of an Administrative Enforcement Order, a Hearing Officer may establish specific deadlines for the payment of fees and costs, and condition the total or partial assessment of civil penalties on the Responsible Person’s ability to take necessary corrective actions by the specified deadlines.
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A Hearing Officer may schedule subsequent
reviewhearings as may be necessary or as requested by the Town to ensure compliance with an Administrative Enforcement Order. - A Hearing Officer may order a Responsible Person to post a cash performance bond to ensure compliance with an Administrative Enforcement Order, but only if agreed to by the Enforcement Official handling the matter for the Town.
- An Administrative Enforcement Order shall become final on the date of signing by the Hearing Officer.
- A copy of the Administrative Enforcement Order shall be served on all parties pursuant to the method of service provided in this Title. When required by this Title, the Director shall record the Administrative Enforcement Order with the Washington County Recorder’s office.
- After a Hearing Officer has issued an Administrative Enforcement Order, the Director shall monitor the matter for compliance with the Administrative Enforcement Order.
9.02.040.9 Failure To Comply With Administrative Enforcement Order
It shall be unlawful for any Responsible Person to fail to comply with the terms and deadlines set forth in an Administrative Enforcement Order. A violation of this section shall be a Class B misdemeanor. The Town may use all appropriate legal means to recover the civil penalties and administrative costs incurred to obtain compliance.
- Any Responsible Person or the Town adversely affected by an Administrative Enforcement Order made in the exercise of the provisions of this Title may, at his or her own expense, file a petition for review in the District Court of Washington County, Utah (“the Court”)
- The petition shall be barred unless it is filed within thirty (30) Days after the Administrative Enforcement Order is final.
- In the petition, the appellant may only allege that the Administrative Enforcement Order was arbitrary, or capricious, or illegal.
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Within one hundred-twenty (120) Days after submitting the petition, the party petitioning for appeal shall request a copy of the record of the proceedings that is the subject of appeal, including transcripts of hearings when necessary. A transcript of the recording shall be deemed a true and correct transcript for purposes of this subsection. The Town shall not submit copies of files or transcripts to the Court until the party petitioning for appeal has paid all required costs. The petitioning party’s failure to properly arrange for copies of the record or to pay the full costs for the record, within one hundred-eighty (180) Days after the petition for review was filed shall be grounds for dismissal of the petition.
- If a transcript of a hearing cannot be prepared because a tape recording is incomplete or unintelligible, the Court may, in its discretion, remand the matter to the Hearing Officer for a supplemental proceeding to complete the record. The Court may limit the scope of the supplemental proceeding to issues that, in the Court’s opinion, need to be clarified.
- Court review shall be limited to the record of the proceeding. The Court may not accept or consider any evidence outside such record unless that evidence was offered to the Hearing Officer and the Court determines that is was improperly excluded by the Hearing Officer.
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The Court shall:
- Presume that the Administrative Enforcement Order is valid;
- Review the record to determine whether the Administrative Enforcement Order was arbitrary, capricious, or illegal; and
- Affirm the Administrative Enforcement Order if it is supported by substantial evidence.
The filing of a petition for review to the Court does not stay execution of an Administrative Enforcement Order. Before filing a petition for review, a Responsible Person may request the Hearing Officer for a stay of the Administrative Enforcement Order. Upon receipt of a request to stay, the Hearing Officer may order the Administrative Enforcement Order to be stayed pending Court review if the Hearing Officer finds such stay to be in the best interest of the Town.
0.03 Administrative And Judicial Remedies
9.03.010 Recordation Of Notices Of Violation; Notices Of Compliance
9.03.020 Administrative Civil Penalties
9.03.030 Administrative Abatement
9.03.040 Costs And Fees
9.03.010 Recordation Of Notices Of Violation; Notices Of Compliance
9.03.010.1 Purpose
9.03.010.2 Authority
9.03.010.3 Procedures For Recordation
9.03.010.4 Notice Of Recordation
9.03.010.5 Failure To Request
9.03.010.6 Notice Of Compliance
9.03.010.7 Prohibition Against Issuance Of Municipal Permits
The Town Council finds that there is a need for alternative methods of enforcement for Violations that are found to exist on real property. The Town Council further finds that an appropriate method of enforcement for these types of Violations is the issuance and recordation of Notices of Violation.
The procedures established in this Part shall be in addition to criminal, civil, or any other remedy established by law that may be pursued to address a Violation.
Whenever the Director determines that a Violation has not been brought into compliance as required, pursuant to this Title, by a Notice of Violation or an Administrative Enforcement Order, the Director has the authority to record the Notice of Violation or Administrative Enforcement Order with the Recorder’s Office of Washington County.
9.03.010.3 Procedures For Recordation
- Once the Town has issued a Notice of Violation to a Responsible Person, and the Violation continues and remains uncorrected after the deadline established in the Notice of Violation, and no request for an Administrative Enforcement Hearing has been filed, the Town may record a Notice of Violation with the Recorder’s Office of Washington County.
- If an Administrative Enforcement Hearing is held, and an Administrative Enforcement Order is issued in the Town’s favor, the Town may record the Administrative Enforcement Order with the Recorder’s Office of Washington County.
- The recordation shall include the name of the Property Owner, the parcel number(s), the legal description of the parcel(s) and a copy of the Notice of Violation or Administrative Enforcement Order.
- The recordation does not encumber the subject property, but merely places future interested parties on notice of any continuing Violation found upon the subject property.
9.03.010.4 Notice Of Recordation
A notice of the recordation shall be served on the Responsible Person and the Property Owner pursuant to any of the methods of service set forth in this Title.
The failure of any Person to file a request for an Administrative Enforcement Hearing when served with a Notice of Violation shall not affect the validity of the recorded Notice of Violation.
9.03.010.6 Notice Of Compliance
When a Violation is purported to be corrected, a Responsible Person shall request an inspection from the Director.
- When the Director receives such request, the Director shall inspect the property as soon as practicable to determine whether the Violation has been corrected, and whether all necessary permits have been issued and final inspections have been performed as required by applicable codes.
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The Director shall serve a Notice of Compliance to the Responsible Person or Property Owner in the manner provided in this Title within ten (10) business days of an inspection in which the Director finds correction of a Violation and determines that:
- All Violations listed in the Notice of Violation or Administrative Enforcement Order have been corrected;
- All necessary permits have been issued and finalized;
- All assessed civil penalties have been paid; and
- All assessed costs and administrative fees have been paid.
- The Town shall record the Notice of Compliance with the Washington County Recorder’s Office, if the related Notice of Violation was recorded. Recordation of the Notice of Compliance shall have the effect of canceling the recorded Notice of Violation.
- If after inspection, the Director determines that the property fails to meet the requirements for a Notice of Compliance, the Director shall, upon Written request from the Responsible Person or the Property Owner, provide a Written explanation setting forth the reasons for failure to qualify for a Notice of Compliance. The Written explanation shall be served by any of the methods of service listed in this Title.
- No delay or omission on the part of the Town to exercise any right or power accruing upon any Violation shall impair any such right or power or shall be construed to be a waiver of any such Violation or acquiescence therein and such right and power may be exercised as often as may be deemed expedient. The Town’s issuing of a Notice of Compliance in any instance shall not constitute continuing consent to subsequent instances and in all cases a Notice of Compliance may be granted or withheld at the sole discretion of the Town. No prior Notice of Compliance shall affect any subsequent Violation or shall impair any of the Town’s rights or remedies on said subsequent Violation. Every substantive right and every remedy conferred upon the Town may be enforced and exercised as often as may be deemed expedient.
9.03.010.7 Prohibition Against Issuance Of Municipal Permits
The Town may withhold or suspend business licenses; permits for kennels; or permits for any alteration, repair, or construction pertaining to any existing or new structures or signs on a property on which a Violation exists, or any permits pertaining to the use and development of the real property or the structure where a Violation is located. The Town may withhold such permits until the Director has issued a Notice of Compliance. The Town may not withhold permits necessary to obtain a Notice of Compliance or to correct serious health and safety Violations.
9.03.020 Administrative Civil Penalties
9.03.020.1 Authority
9.03.020.2 Procedures For Assessing Civil Penalties
9.03.020.3 Determination Of Civil Penalties
9.03.020.4 Modification Of Civil Penalties
9.03.020.5 Failure To Pay Penalties
- Any Person may be subject to the assessment of civil penalties for each Violation.
- Each and every Day a Violation exists is a separate Violation subject to the assessment of civil penalties.
- Civil penalties cannot be assessed when a criminal case has been filed for the same date and Violation, because fines will be assessed with the criminal case.
- Civil penalties for Violations shall be assessed pursuant to the Town’s fee schedule.
- Interest shall be assessed per Town policy on all outstanding civil penalties balances until the case has been paid in full.
9.03.020.2 Procedures For Assessing Civil Penalties
- If a Responsible Person fails to bring a Violation into compliance within ten Days of service of a Notice of Violation, civil penalties shall be owed to the Town for each and every subsequent Day of violation.
- Civil penalties are assessed and owing immediately for an Administrative Notice.
9.03.020.3 Determination Of Civil Penalties
- For a Notice of Violation, civil penalties shall be assessed per Violation per Day pursuant to the Town fee schedule.
- Civil penalties shall continue to accrue until the Violation(s) has/have been brought into compliance.
9.03.020.4 Modification Of Civil Penalties
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The Town or Hearing Officer may waive or modify civil penalties on a finding of good cause and conditioned on, but not limited to, correction of Violation(s).
- In the event that the Responsible Person fails to correct the Violation(s) or to pay reduced civil penalties, then the civil penalty reduction may be rescinded and the Responsible Person shall then owe the original amount of civil penalties assessed as if the reduction had not been given and have the continued requirement to correct the Violation(s).
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Nonconforming or conditional use: Civil penalties may be waived or modified by the Town or Hearing Officer if there is a finding of good cause based on the Responsible Person’s Written claim of nonconforming use or conditional use and:
- The Town’s need to verify the claim; or
- The Responsible Person’s filing of an application for nonconforming or conditional use before expiration of the date to correct.
9.03.020.5 Failure To Pay Penalties
The failure of any Person to pay civil penalties assessed within the specified time may result in the Director’s pursuing any legal remedy to collect the civil penalties as provided by law.
9.03.030 Administrative Abatement
9.03.030.1 Authority To Abate
9.03.030.2 Procedures For Abatement
Enforcement Officials are hereby authorized, to enter upon any property or premises to abate or cause to be abated a Violation. The Director shall assess all costs for abatement to the Responsible Person and may use any remedy available under the law to collect such costs. If additional abatements are necessary within two (2) years, costs may be assessed against the Responsible Person(s) for the actual abatement
9.03.030.2 Procedures For Abatement
- Violations may be abated by Town personnel or by a private party acting under the direction of the Town.
- Town personnel or a private party may enter upon private property in a reasonable manner to abate a Violation as specified in the Notice of Violation or Administrative Enforcement Order.
- If a Responsible Person abates the Violation before the Town abates the Violation pursuant to a Notice of Violation or Administrative Enforcement Order, the Director shall nevertheless assess all costs incurred by the Town against the Responsible Person.
- When abatement is completed, the Director shall prepare a Notice of Itemized Bill for Costs.
- The Director shall serve the Notice of Itemized Bill for Costs by registered mail to the last known address of the Responsible Person. The Notice of Itemized Bill for Costs shall demand full payment within twenty (20) Days to the Leeds Town Treasurer.
- The Responsible Person shall have a right to an Administrative Enforcement Hearing to contest the Notice of Itemized Bill for Costs. Such hearing shall be pursuant to an in conformity with this Title.
9.03.040.1 Purpose And Introduction
9.03.040.2 Authority
9.03.040.3 Failure To Timely Pay Costs
9.03.040.4 Administrative Fees
9.03.040.5 Injunctions
9.03.040.6 Performance Bonds
9.03.040.7 Recovery Of Administrative Code Enforcement Penalties And Costs
9.03.040.1 Purpose And Introduction
There are three primary categories of costs and fees associated with this Title, as follows:
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Costs: These are direct costs the Town incurs in carrying out the abatement of Violations, inspection and re-inspection fees, filing fees, attorney fees, Hearing Officer fees, title search, and any additional actual costs incurred by the Town for each individual case.
- The Town Council finds that costs incurred by Enforcement Officials and the Town to correct Violations should be recovered from the Responsible Person.
- The Town Council further finds that the assessment of costs is an appropriate method to recover costs.
- The assessment and collection of costs shall not preclude the imposition of any administrative or judicial civil fees, penalties or fines for Violations.
- Administrative fees: These are expenses incurred in the administration of this Administrative Code Enforcement program, such as, but not limited to, investigation of Violations, preparation for hearings, hearings and the collection process.
- Administrative civil penalties: These are penalties or fines assessed for a Violation, separate from costs and administrative fees associated with the same.
- Whenever the Town incurs costs to enforce the Town Code and applicable state codes, the Town may assess such costs against the Responsible Person, including property (real, personal, intangible, or otherwise) that is associated with a Violation.
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If more than one inspection is necessary with respect to a Violation, then an inspection fee may be assessed for each subsequent inspection.
- Notification of re-inspection fees shall be provided in the Notice of Violation served to the Responsible Person.
- Re-inspection fees assessed or collected pursuant to this subsection should not be included in any other costs assessed, but should be itemized separately.
- The failure of any Responsible Person to receive notice of the re-inspection fees shall not affect the validity of any other fees imposed under this subsection.
9.03.040.3 Failure To Timely Pay Costs
The failure of any Person to pay assessed costs by the deadline specified in a Notice of Itemized Bill for Costs shall result in a daily late fee calculated on a simple basis (non-compounding) at the rate of one and one-half percent per month on the unpaid balances.
9.03.040.4 Administrative Fees
The Director or Hearing Officer is authorized to assess administrative fees for costs incurred in the administration of this Administrative Code Enforcement program, such as investigation of Violations, preparation for hearings, hearings and the collection process. The fees assessed shall be the amount set in the Town fee schedule.
As a civil judicial remedy available to the Town in addition to any other remedy provided under the Town Code or state codes, including administrative remedies or criminal prosecution, any provision of the Town Code may be enforced by injunction issued by a court of appropriate jurisdiction upon a suit brought by the Town.
- As part of any notice, order, or action, the Town or a Hearing Officer has the authority to require a Responsible Person to post a performance bond to ensure compliance with the Town Code, applicable state codes, or any judicial action.
- If a Responsible Person fails to comply with the notice, order or action, then the bond will be forfeited to the Town. The bond is to be used for abatement costs and will not be used to offset any other outstanding costs and fees associated with the Violation.
9.03.040.7 Recovery Of Administrative Code Enforcement Penalties And Costs
This subsection (a) identifies various methods the Town may use to recover administrative code enforcement penalties and costs; and (b) details the Town’s allocation of these collected penalties and costs.
- Code Enforcement Tax Liens
- Purpose. The Town Council finds that recordation of code enforcement tax liens will assist in the collection of civil penalties, administrative costs and administrative fees assessed by this Administrative Code Enforcement program or judicial orders. The Town Council further finds that collection of civil penalties, costs, and fees assessed for Violations is important in deterring future Violations and maintaining the integrity of the Town’s code enforcement system. The procedures established in this subsection shall be used to complement existing administrative or judicial remedies that may be pursued to address Violations.
- Procedures For Tax Code Enforcement Tax Lien Without A Judgment. The Director shall provide a copy of a Notice of Itemized Bill for Costs to the Town Treasurer. Upon receipt of the Notice of Itemized Bill for Costs, the Town Treasurer shall (i) record a code enforcement tax lien as to the Notice of Itemized Bill for Costs against the property upon which a Violation exists with the Washington County Recorder and (ii) if applicable, file the code enforcement tax lien with the Washington County Treasurer. The Town shall serve a notice of the code enforcement tax lien recordation on the Responsible Person and the Property Owner pursuant to any of the methods of service set forth in this Title. The failure of any Person with a financial interest in the property to receive the notice of the lien shall not affect the validity of the lien or any proceedings taken to collect the amounts associated with the code enforcement tax lien.
- Procedures For Tax Code Enforcement Tax Lien With A Judgment. Once a judgment has been obtained from the appropriate court assessing costs against the Responsible Person, the Director may record a code enforcement tax lien against any real property owned by the Responsible Person.
- Cancellation Of Code Enforcement Tax Lien. Once payment in full is received for the outstanding civil penalties, administrative costs and administrative fees, including, but not limited to, through foreclosure of the code enforcement tax lien as permitted by law, or the amount is deemed satisfied pursuant to a subsequent administrative or judicial order, the Director shall record a Notice of Compliance. The Notice of Compliance shall include the same information as provided for in the original code enforcement tax lien and shall cancel the code enforcement tax lien.
- Writ Of Execution. After obtaining a judgment, the Town may collect the associated obligation by use of all appropriate legal means. This may include the execution on personal property owned by the Responsible Person by filing a writ with the applicable court.
- Writ Of Garnishment. After obtaining a judgment, the Town may collect the associated obligation by use of all appropriate legal means. This may include the garnishment of paychecks, financial accounts, and other income or financial assets by filing a writ with the applicable court.
- Allocation Of Civil Penalties. Collected civil penalties shall be deposited in the General Fund of the Town. Civil penalties deposited in this fund may be allocated pursuant to the Town’s budget process and as authorized by applicable law. The Town shall establish accounting procedures to ensure proper account identification, credit, and collection.
