9-1-6: ENFORCEMENT AND PENALTIES:
A. Enforcement Officer: It shall be the duty of the Director to administer and enforce the provisions of this chapter. (Ord. 32, Series 2007)
B. Violations:
1. As used in this section, the term "development permit" shall include, without limitation, any specific condition of approval contained in a development permit issued by the town pursuant to this chapter which has been signed by both the Director and the holder of such development permit.
2. It shall be unlawful and a misdemeanor offense for any person to do any of the following:
a. To engage in "development" as defined in section 9-1-5 of this chapter without a valid development permit issued pursuant to this chapter authorizing such development. This is a strict liability offense.
b. To use or occupy any real property without a valid development permit issued pursuant to this chapter authorizing such use or occupancy. This is a strict liability offense.
c. To engage in any development, use, construction, remodeling, or other activity of any nature which is materially inconsistent with the terms and conditions of a development permit issued pursuant to this chapter, including, but not limited to, any site plan approved by the town as part of the approval of a development permit. As used in this subsection the term "materially inconsistent" means any development, use, construction, remodeling, or other activity of any nature that is inconsistent with at least one of the following provisions of an approved development permit:
1. The site plan (including, without limitation, parking, grading, drainage, utilities and the location on the site of the approved improvements);
2. The landscape plan;
3. The floor plans, but only as to:
(a) Density;
(b) Mass;
(c) The parking requirement for the project; or
(d) The project's plant investment fees;
4. The building elevations (including, but without limitation, existing and proposed grades, finished floor elevations, ridge elevations, and exterior material specifications);
5. The building roof plan;
6. The exterior building details;
7. The project's density, mass, aboveground density (if located in the historic district), and the site area calculations (including, without limitation, building footprint, hard surface and open space); and
8. The project's land uses.
d. To violate the terms of any restrictive covenant required by the town to be recorded with the clerk and recorder of Summit County, Colorado, in connection with the issuance of a development permit pursuant to this chapter.
e. To violate any other provision of this chapter.
f. To remove, deface, obscure or otherwise interfere with any notice required to be given or posted pursuant to this chapter. This is a strict liability offense. (Ord. 8, Series 2013)
C. Continuing Violations: A person shall be guilty of a separate offense for each and every day during any portion of which any violation of subsection B of this section is committed, continued or permitted by such person, and such person shall be punished accordingly.
D. Criminal Penalties:
1. Any person convicted of having violated subsection B2a or B2b of this section shall be punished as set forth in title 1, chapter 4 of this code; provided, however, that upon conviction such person shall receive a minimum fine of five hundred dollars ($500.00), no portion of which may be suspended by the court. A defendant convicted of having violated subsection B2a or B2b of this section may also be imprisoned pursuant to subsection D5 of this section.
2. Any person convicted of having violated subsection B2c of this section shall be punished as set forth in title 1, chapter 4 of this code; provided, however, that upon conviction such person shall receive a minimum fine of five hundred dollars ($500.00), no portion of which may be suspended by the court. A defendant convicted of having violated subsection B2c of this section may also be imprisoned pursuant to subsection D5 of this section. Notwithstanding the foregoing, if the court determines that the violation did not involve an imminent threat to public health, safety or welfare and that defendant was not given written notice and the opportunity to correct the violation pursuant to subsection K1 of this section prior to the institution of the ordinance violation proceedings by the town, the court shall not impose any period of imprisonment. The preceding sentence shall not apply to emergency violations as described in subsection K2 of this section.
3. Any person convicted of having violated subsection B2d of this section shall be punished by the imposition of a fine not to exceed one hundred dollars ($100.00) for each day during any portion of which a violation of the restrictive covenant is committed, continued or permitted by such person.
4. Any person convicted of having violated subsection B2e or B2f of this section shall be punished as set forth in title 1, chapter 4 of this code.
5. Upon conviction for a violation of subsection B2a, B2b, or B2c of this section the court may impose an appropriate jail sentence upon the defendant if the court determines that the facts demonstrate beyond a reasonable doubt that the defendant acted intentionally, knowingly, recklessly, or with deliberate indifference with respect to the violation. As used in this subsection, the term "deliberate indifference" means the careful preservation of one's ignorance despite awareness of circumstances that would put a reasonable person on notice of a fact essential to the applicable violation. If the violation involves the unapproved demolition or destruction of a historic structure, in determining whether to impose a jail sentence the court shall also consider the importance of the town's historic structures to the character of the town, and the magnitude of the loss to the town caused by the demolition or destruction of the particular structure involved in the violation. (Ord. 32, Series 2007)
6. Upon conviction for any violation of this chapter the requirements of section 1-4-3 of this code concerning restitution shall apply. (Ord. 32, Series 2012)
E. Remedy For Unapproved Demolition Or Destruction Of Historic Structure: The unapproved demolition or destruction of a historic structure shall result in the revocation of the original development permit, and the person determined to be responsible for the unapproved demolition or destruction of the historic structure shall be required to reconstruct the building or portion thereof as closely as possible to its original condition at the time it was destroyed, unless the planning commission and town council (if the planning commission's decision is called up) approve an alternative action.
F. Additional Remedies: In addition to or in lieu of the imposition of criminal penalties as provided in subsection D of this section, the town shall have the following additional remedies and enforcement powers:
1. Withholding Of Further Permits For Same Property: The town may deny or withhold further development permits, building permits, certificates of occupancy or other forms of authorization for the use and occupancy of the real property on which the violation is determined to have occurred until the violation is corrected or until the expiration of five (5) years after the date of the violation, whichever shall first occur. The provisions of this subsection F1 shall apply regardless of whether the current owner or applicant is responsible for the violation in question.
2. Withholding Of Further Permits For Same Developer: The town may deny or withhold all development permits, building permits, certificates of occupancy or other forms of authorization on any land, structure or improvements thereon owned or being developed by the same person who owns, developed or otherwise caused an uncorrected violation of this chapter until such time as the violation is corrected. The provisions of this subsection F2 shall apply regardless of whether the property for which the permit or other approval is sought is the property which is in violation.
3. Permits Approved With Conditions: Instead of withholding or denying a permit or other authorization as described in subsections F1 and F2 of this section, the town may grant such permit or authorization subject to the conditions that the violation be corrected within a specified time period, and an adequate financial guarantee be posted with the town to assure the timely correction of the violation.
4. Revocation Of Development Permit: Any development permit issued pursuant to this chapter may be revoked by the planning commission after a public hearing when the planning commission determines that:
a. There is a material departure from the approved plans, specifications, or conditions of the development permit;
b. The development permit was procured by false representation or was issued by mistake; or
c. Any of the provisions of this chapter or the development permit itself are being violated.
Not less than twenty (20) days' prior written notice of the public hearing shall be provided to the holder of the development permit and other known parties in interest (including any mortgagee and any holder of building permit related to the property). If the planning commission determines that there is a departure from the approved plans, specifications or conditions of the development permit, the planning commission may decline to revoke the development permit if the holder of the permit provides such security as the planning commission may require to guarantee that the departure from the approved plans, specifications or conditions of the development permit will be corrected within such reasonable time period as the planning commission shall determine. The director shall notify the town council of any decision of the planning commission revoking a development permit at the council's next regular meeting after the planning commission's decision. At that meeting, the town council may, by affirmative vote of the members present, call up any decision of the planning commission revoking a development permit for the council's own review under section 9-1-18-5 of this chapter. If a planning commission decision to revoke a development permit is called up, the criteria for revocation of a development permit as set forth in this subsection F4 shall apply to the town council's consideration of the decision which has been called up. The final decision of the town council with respect to the revocation of a development permit, whether such decision be made through the affirmation of the decision of the planning commission or as a result of a de novo call-up hearing, may be appealed to the appropriate court pursuant to rule 106(a)(4) of the Colorado rules of civil procedure.
5. Injunctive Or Other Equitable Relief: The town may seek an injunction or other appropriate equitable relief in court to enjoin or abate any violation of this chapter or the violation of any development permit issued pursuant to this chapter. An action seeking injunctive or other equitable relief under this subsection shall be brought in the name of the town. In any equitable action brought by the town under this section, there shall be available to the defendant all defenses recognized in equity civil actions under the laws of the State of Colorado. If the town is the prevailing party in any such equitable action, the town shall recover its reasonable attorney fees and costs, including expert witness fees, incurred in such action. In addition, if the town is the prevailing party in an abatement action, the town shall be entitled to recover from the defendant an amount sufficient to reimburse the town for its administrative costs incurred in connection with the abatement action. Equitable relief may be sought in the municipal court pursuant to section 1-8-10 of this code, or in any court of competent jurisdiction.
6. Declaratory Judgment: The town may seek a declaratory judgment pursuant to rule 57 of the Colorado rules of civil procedure to obtain a declaration of rights under this chapter or any other municipal ordinance. The declaratory judgment action may be combined with any other authorized enforcement action.
7. Other Remedies: In addition to the enforcement powers specified in this section, the town may exercise any and all enforcement powers granted by Colorado law.
G. Remedies Cumulative: The remedies and enforcement powers established by this section shall be cumulative, and the town may exercise them in any order. There is no prohibition against contemporaneous criminal and civil actions related to the same violation.
H. Liability Of Business Entity: In any action brought under this section against a "business entity" as defined in section 1-13-6 of this code, the provisions of section 1-13-6 of this code shall apply.
I. Liability Of An Individual For Conduct Of Business Entity: A person is criminally liable for conduct constituting an offense which such person performs or causes to occur in the name of or in behalf of a "business entity" as defined in section 1-13-6 of this code to the same extent as if that conduct were performed or caused by such person in such person's own name or behalf.
J. Liability Of Landlord: A landlord shall be responsible for the conduct of a tenant which constitutes a violation of subsection B of this section if the landlord:
1. Has knowledge of the violation;
2. Has the power to cause the tenant to cease the conduct which constitutes a violation of subsection B of this section, or to evict the tenant, after the landlord receives knowledge of the violation; and
3. Fails within a period of ninety (90) days after receiving knowledge of the violation to either cause the tenant to cease the conduct which constitutes a violation of subsection B of this section, or to evict the tenant.
K. Enforcement Procedures:
1. Nonemergency Violations: In the case of violations of this chapter or a development permit issued pursuant to this chapter that do not constitute or require immediate correction, the director shall give notice of the nature of the violation to the property owner and to the person believed to be responsible for the violation, if different from the property owner. The person receiving the notice shall have thirty (30) days within which to correct the violation before further enforcement action shall be taken. In the event of corrective action which requires more than thirty (30) days to complete, no further enforcement action shall be taken by the director if the person commences the corrective action within such thirty (30) day period and thereafter corrects the violation with due diligence. The notice shall be given in person, by the United States mail, or by posting notice on the premises. A notice of violation shall state:
a. The nature of the alleged violation;
b. The corrective action required to be taken with respect to the alleged violation;
c. The time period within which the corrective action is to be commenced and completed; and
d. The nature of subsequent penalties and enforcement actions that may be imposed or taken by the town should the violation not be corrected.
2. Emergency Violations: In the case of violations of this chapter or a development permit issued pursuant to this chapter that constitute an emergency as a result of an imminent threat to public health, safety or welfare, the town may use the enforcement powers available under this section without prior notice, but the director shall attempt to give notice simultaneously with beginning enforcement action. Notice may be provided to the property owner and to the person believed to be responsible for the violation, if different from the property owner. (Ord. 32, Series 2007)