AGENDA REQUEST

Sponsor:

 

Board of Supervisors Meeting Date:

Terrence L. Nyhous, Center District Supervisor

 

July 9, 2009

 

Staff Lead:

Department:

 

Andrew Hushour, Assistant Zoning Administrator

 

Community Development

 

Topic:

 

A Resolution Initiating a Zoning Ordinance Text Amendment to Section 13-600 Related to Civil Penalties

 

Topic Description:

The proposed text amendment seeks to update and broaden the existing provisions found in Section 13-603 relating to civil penalties. This amendment updates the civil penalty regulations to be consistent with current regulations found in the Code of Virginia, in anticipation of a shift in the enforcement practices of Fauquier County from an exclusive emphasis on civil injunctions to the use of both civil injunctions and civil fines, providing the Zoning Administrator with better tools to promptly and successfully resolve zoning violations.

 

Requested Action of the Board of Supervisors:

For purposes of good zoning practice, convenience, and general welfare, consider approval of the attached resolution.

Staff Report:

Existing Ordinance

The existing Zoning Ordinance regulations found in Section 13-600 establish the general provisions for violations, infractions and penalties and provide the legal basis for which the County performs its enforcement related duties. Pursuant to Section 13-601.4 of the Fauquier County Zoning Ordinance, the County has the ability to initiate a court injunction to “prevent, enjoin, abate or remove” violations of any provision of the Zoning Ordinance.  In addition, the Ordinance provides for the use of civil and criminal penalties, including fines, in certain types of infractions. Under this structure, many Zoning Ordinance infractions are eligible for criminal penalties. However, violations of the following provisions are eligible for civil penalties, including fines:

  • Establishment of uses and/or structures in conflict with the zoning ordinance or without Zoning Permit (Sections 2-302, 2-304, 2-305, 13-501);
  • Violation of Lot Size, Bulk or Open Space Requirements (includes lot sizes, setbacks, heights, coverage, etc.);
  • Inoperable Vehicles (2-508);
  • Sales from Vehicle (2-510);
  • Keeping of Animals (2-512);

Existing Practice

Despite the existence of a system of civil penalties, this process has not been utilized by County staff for at least the last 15 years, nor is there an existing framework to impose and collect fines, as is the case in most counties in Virginia.  Instead, all zoning enforcement is dealt with through a system of voluntary compliance or civil injunctions, which requires an extraordinary amount of staff time and resources resulting in a prolonged period before compliance is actually achieved, if at all. The problem is exacerbated further given the volume of complaints that County staff receives.  Currently, there are approximately 70-80 outstanding violations that are in various stages of the enforcement process. While Zoning staff makes a concerted effort to achieve voluntary compliance, there are many cases in which this cannot be accomplished. For those cases, the civil injunction process can take upwards of one year, or more in some cases, a reality that is both frustrating for County staff and the citizens that are negatively impacted by violators. In addition, many of the more commonly occurring violations, such as the display of illegal signage or the storage of junk or inoperable vehicles on private property could be easily corrected in light of an immediate penalty rather than through a prolonged civil injunction process.

The use of criminal penalties for zoning violations has been very rare, and staff does not believe the criminal approach to enforcement is desirable for several reasons. Mainly, the burden of proof for criminal prosecution is much higher, and would require a similar level of staff resources, if not more, than is required by the existing civil injunction process. In addition, alleged violators object to being charged with a crime for an action that typically occurred out of ignorance of the law.  For example, the placement of an accessory structure in the wrong location or the establishment of a business office within one’s home, for example, does not seem to be a crime, especially in the context of burglary, larceny, and the like. 

Staff believes that the best alternative for improving enforcement is the increased use of civil penalties, including a broader use of fines.  Civil penalties can result in many positive benefits for both the violator, by removing the stigma of being convicted of a crime, and for citizens impacted by violations, in that compliance can be achieved in a relatively short period of time and without the drain on County resources. Several counties in Virginia, such as Arlington and Loudoun counties, have established a zoning enforcement program that is based largely on civil penalties and the use of fines, and found that it has proven itself to be an important method of achieving compliance in certain zoning violation cases. 

Proposed Amendment

The Code of Virginia allows a much broader range of zoning violations to be addressed through civil penalties than is actually set forth in the County’s Zoning Ordinance.  The Code of Virginia mandates the sole use of criminal penalties for only a limited number of violations: signs on public property or rights-of way, certain land development activities, and violations that result in physical injury to a person. Staff believes it would be beneficial to the enforcement program to expand the allowed use of civil penalties under the Zoning Ordinance, to include such common violations as junk/excessive outdoor storage and storage of commercial vehicles on a property. The Ordinance would also benefit from amended language that clarifies that violations such as signs, home occupations, etc. are subject to Civil Penalties; this is not immediately obvious.

In addition, the Zoning Ordinance also needs to be revised so that the civil penalties are consistent with the current fine structure as allowed by the Code of Virginia. These fines range from $200 for the initial violation to $500 for subsequent violations up to a maximum of $5,000 for a violation arising out of one set of facts.  For reference, according to an Arlington County report on civil penalties, Loudoun County issued $46,500 in fines in FY 2009 and Arlington County, which recently passed a similar Ordinance amendment shifting to civil penalties, is projecting a similar amount for its FY 2010 budget. This raises an important point, in that in addition to the amendment language itself, staff must also consider the practical reality as to how such fines would ultimately be collected.

Although the amendment would signal a shift in the enforcement philosophy of the County, the Zoning Administrator would still retain other tools in the enforcement of the provisions of the Zoning Ordinance.  For example, staff would still reserve the right to request injunctive relief and, should the maximum fine amount be levied, convert the violation to a criminal penalty if that option is more preferable. It is anticipated that fines would only be issued in situations where immediate compliance is achievable.  In other cases, fines would only be utilized after giving a reasonable period for achieving compliance.

Given the complexity and level of interest that will most likely be generated by the topic, staff anticipates that the amendment will be a lengthy and challenging task. For this reason, no specific text language has been drafted at this time. Overall, however, staff believes that this amendment would be beneficial to the County and its residents by establishing an enforcement program that promptly and successfully resolves zoning violations.

 

Financial Impact Analysis:

No financial impact analysis has been conducted.

Identify any other Departments, Organizations or Individuals that would be affected by this request:

Office of the County Attorney
Fauquier County Circuit Court
Fauquier County General District Court

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