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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. In addition, 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); and
-
Keeping of Animals (2-512);
Existing
Enforcement Practices
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.
In
anticipation of utilizing civil penalties as an enforcement
tool, staff is proposing updates to the existing regulations
related to their use.
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 existing Zoning Ordinance by
decriminalizing the Ordinance so that all infractions,
except for those set forth in the Code of Virginia, will be
eligible for civil penalties, including fines. As such,
the proposed text amendment reflects this change. It is
important to note that the text has been drafted to ensure
that the Zoning Administrator still retains other tools in
the enforcement of the provisions of the Ordinance. As
proposed, the Zoning Administrator can still request
injunctive relief and, should the maximum fine amount be
levied in accordance with the proposed regulations, convert
the violation to a criminal penalty if that option is more
preferable.
In addition,
the proposed text amendment also includes revised language
ensuring 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.
Process &
Planning Commission Recommendation
The Planning
Commission held a public hearing on the proposed amendment
at its August 27, 2009 meeting and unanimously recommended
that the Board of Supervisors approve the text amendment as
proposed by staff. The Office of the County Attorney has
subsequently provided comment on the proposed text amendment
language and recommended several additional changes, which
are shown in blue in the attached ordinance. These
additional changes include language clarifying Zoning
Administrator’s designees; the addition of procedural
guidelines pertaining to inspection warrants; the addition
of criminal penalty regulations for violations relating to
the occupancy of single family dwelling units;
clarifications concerning the use of civil versus criminal
penalties; and burden of proof requirements for civil
penalty trials.
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