Any of the following shall be a violation of the UDO and shall be subject to the enforcement remedies and penalties provided by this chapter and by state law.

   (A)   Development without permit. A DEVELOPMENT WITHOUT A PERMIT VIOLATION means to engage in any development, use, construction, remodeling or other activities of any nature upon the land or improvements thereon subject to the jurisdiction of the UDO without required permits, certificates or other forms of authorization as set forth in the UDO. A “development without a permit violation” shall result in the assessment of a fee per the city’s Fee Schedule.

   (B)   Development inconsistent with permit. A DEVELOPMENT INCONSISTENT WITH A PERMIT VIOLATION means to engage in any development, use, construction, remodeling or other activity of any nature in any way inconsistent with any approved plan, permit, certificate or other form of authorization granted for the activity.

   (C)   Violation by act or omission. A VIOLATION BY ACT OR OMISSION means to violate, by act or omission, any term, variance or waiver, condition or qualification placed by the Board of Commissioners or its authorized boards and staff upon any required permit, certificate or other form of authorization for the use, development or other activity upon land or improvements thereon.

   (D)   Use in violation. A USE IN VIOLATION means to erect, construct, reconstruct, alter, repair, convert, maintain or use any building or structure or to use any land in violation or contravention of the UDO, or any other regulation made under the authority conferred thereby.

   (E)   Subdivide in violation. A SUBDIVIDE IN VIOLATION means to subdivide land in violation of the UDO or transfer or sell land by reference to, exhibition of, or any other use of a plat or map showing a subdivision of the land before the plat or map has been properly approved under the UDO and recorded in the county office of the Register of Deeds. The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring land does not exempt the transaction from violation of the UDO.

   (F)   Continue a violation. Each day’s violation of any provision of the UDO is a separate and distinct offense.

(Ord. passed 7-25-2011)

   It is the intention of the UDO, unless otherwise provided, that all questions arising in connection with the enforcement of the UDO shall be presented first to the Zoning Administrator and that the questions shall be presented to the Board of Adjustment only on appeal from the Zoning Administrator’s final decision. An appeal from the decision of the Board of Adjustment shall be by proceedings in the nature of certiorari to the Superior Court as provided by law pursuant to § 162.07 and must be filed with the County Clerk of Court within the 30-day appeal period described in § 162.07. It is further the intention of the UDO that the duties of the Board of Commissioners in connection with the UDO shall not include the hearing and passing upon disputed questions that may arise in connection with the enforcement thereof.

(Ord. passed 7-25-2011)

    When the Zoning Administrator or designee discovers a violation of the UDO or receives a complaint alleging a violation of the UDO, it shall be his or her duty to attempt to immediately notify the owner and occupant of the land, building, structure, sign or use of the violation.

   (A)   Notice of Non-Compliance. Upon discovery of the existence of a violation of the UDO, the Zoning Administrator shall by first-class mail, telephone, electronic delivery, or personal service attempt to notify the owner, occupant of the property or holder of the development approval of the nature of the violation, provide a citation of the section(s) of the ordinance violated, and describe the measures necessary to remedy the violation. The Zoning Administrator may also request that the owner or occupant of the property arrange a meeting with the Planning and Inspections Department staff to further discuss the violation and options for remedying the violation. Any recipient of notifications under this section shall not be considered a ‘person aggrieved’ for appeal purposes.

      (1)   The Notice shall be issued by personal delivery, electronic delivery, or first-class mail and may be provided by similar means to the occupant of the property or the person undertaking the work or activity. The Notice may be posted on the property.

      (2)   The staff member issuing the Notice of Violation shall certify to the City that the Notice was provided, and the certificate shall be deemed conclusive in the absence of fraud.

      (3)   The Notice of Violation shall state:

         (a)   The lands, building, sign, structure or use is in violation of the UDO.

         (b)   The nature of the violation, and citation of the section of the UDO violated; and

         (c)   The measures necessary to remedy the violation.

      (1)   The Zoning Administrator may issue a Stop Work Order whenever any work or activity subject to UDO regulations is undertaken in substantial violation of any State law or local ordinance, or in a manner that endangers life or property. The order shall identify the specific part of the work or activity that is in violation or presents such a hazard and order the work be stopped. The Stop Work Order shall:

         (a)   Be in writing and directed to the person doing the work or activity;

         (b)   Identify:

            1.   The specific work or activity to be stopped;

            2.   The reasons therefor; and

            3.   The conditions under which the work or activity may be resumed.

      (2)   A copy of the order shall be delivered to the holder of the development approval and to the owner of the property involved by personal delivery, electronic delivery, or first-class mail.

         (a)   The staff member(s) delivering the stop work order shall certify to the City that the order was delivered and the certificate shall be deemed conclusive in the absence of fraud.

         (b)   The Stop Work Order may be appealed to the Board of Adjustment as pursuant to § 159.01

         (c)   No further work or activity shall take place in violation of a Stop Work Order pending a ruling on the appeal. Violation of a Stop Work Order shall be enforced by any one or all of the procedures identified in § 162.04.

   (F)   Failure to comply with an order. If the owner or occupant of a property fails to comply with a Notice of Non-Compliance and Notice of Violation from which no appeal has been taken, or an Order of Corrective Action following an appeal, the owner or occupant shall be subject to such remedies and penalties as may be provided for by the General Statutes and § 162.04. If the owner or occupant fails to comply with the remedies and penalties prescribed, enforcement shall be sought through an order of a court of competent jurisdiction.

(Ord. passed 7-25-2011; Ord. 21-O-04, passed 6-28-2021; Ord. 22-O-01, passed 1-24-2022)

   As authorized by G.S. §§ 160A-365, 160A-375, 160A-175 and 14-4, any one or all of the following procedures may be used to enforce the provisions of the UDO.

   (A)   Injunction. Any violation of the UDO or of any condition, order or requirement, or remedy adopted pursuant hereto may be restrained, corrected, abated, mandated or enjoined by other appropriate proceeding pursuant to state law.

   (B)   Civil penalties. Any person who violates any provisions of the UDO shall be subject to the assessment of a civil penalty under the procedures provided in § 162.05.

   (C)   Denial of permit or certificate. The Zoning Administrator may withhold or deny any permit, certificate, occupancy or other form of authorization on any land, building, sign, structure or use in which there is an uncorrected violation of a provision of the UDO or of a condition or qualification of a permit, certificate or other authorization previously granted.

   (D)   Conditional approval. The Zoning Administrator may condition the authorization of any permit or certificate upon the correction of the deficiency, payment of civil penalties within a specified time, or the posting of a compliance security approved by the city attorney.

   (E)   Revocation of permits. In accordance with § 162.06, permits shall be revoked for any substantial departure from the approved applications, plans or specifications; refusal or failure to comply with the requirements of state or local laws; or for false statements or misrepresentations made in securing the permit. Any permit mistakenly issued in violation of an applicable state or local law may also be revoked.

   (F)   Other penalties. Any violation of the UDO shall result in a fine as specified in the City Schedule.

   (G)   State and common law remedies. In addition to other enforcement provisions contained in the UDO, the Board of Commissioners may exercise any and all enforcement powers granted to it by state law or common law.

   (H)   Penalties for transferring lots in unapproved subdivisions. In accordance with the provisions of G.S. § 160D-807, any person who, being the owner or agent of the owner of any land located within the planning and zoning jurisdiction of the city, subdivides his or her land in violation of the requirements of the UDO or transfers or sells land by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before the plat has been properly approved under the provisions of the UDO and recorded in the office of the appropriate Register of Deeds, shall be subject to the penalties set forth herein. The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring land shall not exempt the transaction from these penalties. The city may bring an action for injunction of any illegal subdivision, transfer, conveyance, or sale of land, and the court shall, upon appropriate findings, issue an injunction and order requiring the offending party to comply with the provisions of the UDO. Building permits required pursuant to G.S. § 160D-1110 may be denied for lots that have been illegally subdivided. In addition to other remedies, the city may institute any appropriate action or proceedings to prevent the unlawful subdivision of land, to restrain, correct or abate the violation, or to prevent any illegal act or conduct. The provisions of this section shall not, however, prohibit any owner or its agent from entering into contracts to sell or lease by reference to an approved preliminary plat for which a final plat has not yet been properly approved or recorded with the Register of Deeds, provided that the contract does all of the following:

      (1)   Incorporates as an attachment a copy of the preliminary plat referenced in the contract and obligates the owner to deliver to the buyer a copy of the recorded plat prior to closing and conveyance;

      (2)   Plainly and conspicuously notifies the prospective buyer or lessee that a final subdivision plat has not been approved or recorded at the time of the contract, that no governmental body will incur any obligation to the prospective buyer or lessee with respect to the approval of the final subdivision plat, that changes between the preliminary and final plats are possible, and that the contract or lease may be terminated without breach by the buyer or lessee if the final recorded plat differs in any material respect from the preliminary plat;

      (3)   Provides that if the approved and recorded final plat does not differ in any material respect from the plat referred to in the contract, the buyer or lessee may not be required by the seller or lessor to close any earlier than five days after the delivery of a copy of the final recorded plat; and

      (4)   Provides that if the approved and recorded final plat differs in any material respect from the preliminary plat referred to in the contract, the buyer or lessee may not be required by the seller or lessor to close any earlier than 15 days after the delivery of the final recorded plat, during which 15-day period the buyer or lessee may terminate the contract without breach or any further obligation and may receive a refund of all earnest money or prepaid purchase price. The provisions of this section also shall not prohibit any owner or its agent from entering into contracts to sell or lease land by reference to an approved preliminary plat for which a final plat has not been properly approved under these regulations or recorded with the Register of Deeds where the buyer or lessee is any person who has contracted to acquire or lease the land for the purpose of engaging in the business of construction of residential, commercial or industrial buildings on the land, or for the purpose of resale or lease of the land to persons engaged in that kind of business, provided that no conveyance of that land may occur and no contract to lease it may become effective until after the final plat has been properly approved under the UDO and recorded with the Register of Deeds.

(Ord. passed 7-25-2011; Ord. 21-O-04, passed 6-28-2021; Ord. 22-O-01, passed 1-24-2022)

   (A)   Penalties. Any person who violates any provisions of the UDO shall be subject to assessment of the maximum civil penalty allowed by law, as specified in the City Fee Schedule.

   (B)   Notice. No civil penalty shall be assessed until the person alleged to be in violation has been notified of the violation in accordance with § 162.03(A). If after receiving a notice of violation under § 162.03(A), the owner or other violator fails to take corrective action, a civil penalty may be imposed under this section in the form of a citation. The citation shall be served in the manner of a Notice of Violation. The citation shall state the nature of the violation, the civil penalty to be imposed upon the violator and shall direct the violator to pay the civil penalty within 15 days of the date of the notice.

   (C)   Responsible parties. The owner or occupant of any land, building, structure, sign or use of land or part thereof and any architect, builder, contractor, agent or any other person who participates or acts in concert, assists, directs, creates or maintains any condition that is in violation of the requirements of the UDO may be held responsible for the violation and subject to the civil penalties and remedies herein provided.

   (D)   Continuing violation. For each day the violation is not corrected, the violator will be guilty of an additional and separate offense and subject to additional civil penalty.

   (E)   Demand for payment. The Zoning Administrator shall make written demand for payment upon the property owner or the person in violation, and shall set forth in detail a description of the violation for which the civil penalty has been imposed.

   (F)   Nonpayment. If payment is not received or equitable settlement reached within 30 days, after demand for payment is made, the matter shall be referred to legal counsel for institution of a civil action in the appropriate division of the General Courts of Justice for recovery of the civil penalty. Provided however, if the civil penalty is not paid within the time prescribed, the Zoning Administrator may have a criminal summons or warrant issued against the violator. Nothing herein shall preclude the Zoning Administrator from exercising other enforcement rights simultaneously.

(Ord. passed 7-25-2011)

   (A)   General. A zoning, sign or special use permit may be revoked by the permit-issuing authority (in accordance with the provisions of this section) if the permit recipient fails to develop or maintain the property in accordance with the approved plans, the requirements of the UDO, or any additional requirements lawfully imposed by the permit-issuing authority. No person may continue to make use of land or buildings in the manner authorized by any zoning, sign or special use permit after the permit has been revoked in accordance with this section.

   (B)   Special use permit revocation. Before a special use permit may be revoked, all of the notice and hearing requirements of Chapter 153 shall be complied with. The notice shall inform the permit recipient of the alleged grounds for the revocation.

   (C)   Zoning or sign permit revocation. Before a zoning or sign permit may be revoked, the Zoning Administrator shall give the permit recipient ten days notice of intent to revoke the permit and shall inform the recipient of the alleged reasons for the revocation and of his or her right to obtain an informal hearing on the allegations. If the permit is revoked, the Zoning Administrator shall provide to the permittee a written statement of the decision and the reasons therefore.

(Ord. passed 7-25-2011)

   (A)   Appeal to Superior Court. Every decision of the Board of Adjustment, including granting or denying special use permits or variances and appeals of administrative determinations, shall be subject to review by the Superior Court of Craven County by proceedings in the nature of certiorari.

      (1)   A written copy of the Board of Adjustment’s decision has been filed in the office of the Zoning Administrator; or

      (2)   A written copy of the Board of Adjustment’s decision has been given in accordance with § 159.12(C). When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.

      (1)   State the facts that demonstrate that the petitioner has standing to seek review;

      (2)   Set forth the grounds upon which the petitioner contends that an error was made;

      (3)   Set forth with particularity the allegations and facts, if any, in support of allegations that, as the result of impermissible conflict as described in G.S. § 160D-109, or other conflict rules contained within the City of Havelock Code of Ordinances, the Board of Adjustment was not sufficiently impartial to comply with due process principles; and

      (4)   Set forth the relief the petitioner seeks.

      (1)   Any person possessing any of the following criteria:

         (a)   An ownership interest in the property that is the subject of the decision being appealed, a leasehold interest in the property that is the subject of the decision being appealed, or an interest created by easement, restriction or covenant in the property that is the subject of the decision being appealed.

         (b)   An option or contract to purchase the property that is the subject of the decision being appealed.

         (c)   An applicant before the decision-making board whose decision is being appealed.

      (2)   Any other person who will suffer special damages as the result of the decision being appealed;

      (3)   An incorporated or unincorporated association to which owners or lessees of property in a designated area belong by virtue of their owning or leasing property in that area, or an association otherwise organized to protect and foster the interest of the particular neighborhood or local area, so long as at least one of the members of the association would have standing as an individual to challenge the decision being appealed, and the association was not created in response to the particular development or issue that is the subject of the appeal; and

      (4)   The city, when the Board of Adjustment has made a decision that the Board of Commissioners believes improperly grants a variance from or is otherwise inconsistent with the proper interpretation of the UDO or any other ordinance adopted by the Board of Commissioners. The appeal of decision shall be filed in Superior Court of Craven County.

    (E)   Respondent.

      (1)   The respondent named in the petition shall be the city, except that if the petitioner is the city and they filed a petition pursuant to division (D)(4) above, then the respondent shall be the Board of Adjustment.

      (2)   If the petitioner is not the applicant before the Board of Adjustment whose decision is being appealed, the petitioner shall also name that applicant as a respondent.

      (3)   Any petitioner may name as a respondent any person with an ownership or leasehold interest in the property that is the subject of the decision being appealed who participated in the hearing, or was an applicant, before the Board of Adjustment.

      (1)   Upon filing the petition, the petitioner shall present the petition and a proposed writ of certiorari to the County Clerk of Superior Court. The writ shall direct the city, or the respondent decision-making board if the petitioner is the city (pursuant to division (D)(4) above), to prepare and certify to the court the record of proceedings below within a specified date.

      (2)   The writ shall also direct that the petitioner shall serve the petition and the writ upon each respondent named therein in the manner provided for service of a complaint under Rule 4(j) of the Rules of Civil Procedure, except that, if the respondent is a decision-making board, the petition and the writ shall be served upon the Chair of that decision-making board. Rule 4(j)(5)d. of the Rules of Civil Procedure shall apply in the event the Chair of a decision-making board cannot be found. No summons shall be issued.

      (3)   The clerk shall issue the writ without notice to the respondent or respondents if the petition has been properly filed and the writ is in proper form. A copy of the executed writ shall be filed with the court.

      (4)   Upon the filing of a petition for writ of certiorari, a party may request a stay of the execution or enforcement of the decision of the Board of Adjustment pending superior court review. The court may grant a stay in its discretion and on conditions that properly provide for the security of the adverse party. A stay granted in favor of the city shall not require a bond or other security

      (1)   Any person described in division (D)(1) above shall have standing to intervene and shall be allowed to intervene as a matter of right.

      (2)   Any person, other than one described in division (D)(1) above, who seeks to intervene as a petitioner must demonstrate that the person would have had standing to challenge the decision being appealed in accordance with divisions (D)(2) through (4) above.

      (3)   Any person, other than one described in division (D)(1) above, who seeks to intervene as a respondent must demonstrate that the person would have had standing to file a petition in accordance with divisions (D)(2) through (4) above if the decision-making board had made a decision that is consistent with the relief sought by the petitioner.

      (1)   The record shall consist of all documents and exhibits submitted to the decision-making board whose decision is being appealed, together with the minutes of the meeting or meetings at which the decision being appealed was considered.

      (2)   Upon request of any party, the record shall also contain an audio or videotape of the meeting or meetings at which the decision being appealed was considered if such a recording was made. Any party may also include in the record a transcript of the proceedings, which shall be prepared at the cost of the party choosing to include it. The parties may agree, or the court may direct, that matters unnecessary to the court’s decision be deleted from the record or that matters other than those specified herein be included.

      (3)   The record shall be bound and paginated or otherwise organized for the convenience of the parties and the court. A copy of the record shall be served by the municipal respondent, or the respondent decision-making board, upon all petitioners within three days after it is filed with the court.

      (1)   Whether a petitioner or intervener has standing;

      (2)   Whether, as a result of impermissible conflict as described in G.S. § 160D-109, or Chapter 153 of the UDO, the decision-making body was not sufficiently impartial to comply with due process principles; and

      (3)   Whether the decision-making body erred for the reasons set forth in divisions (K)(1)(a) and (b) below.

      (1)   When reviewing the decision of a decision-making board under the provisions of this section, the court shall ensure that the rights of petitioners have not been prejudiced because the decision-making body’s findings, inferences, conclusions or decisions were:

         (a)   In violation of constitutional provisions, including those protecting procedural due process rights;

         (b)   In excess of the statutory authority conferred upon the city or the authority conferred upon the decision-making board by ordinance;

         (c)   Inconsistent with applicable procedures specified by statute or ordinance;

         (d)   Affected by other error of law;

         (e)   Unsupported by substantial competent evidence in view of the entire record; or

         (f)   Arbitrary or capricious.

      (2)   When the issue before the court is whether the decision-making board erred in interpreting an ordinance, the court shall review that issue de novo. The court shall consider the interpretation of the decision-making board, but is not bound by that interpretation, and may freely substitute its judgment as appropriate.

         (a)   The use of property in a particular way would affect the value of other property;

         (b)   The increase in vehicular traffic resulting from a proposed development would pose a danger to the public safety; and/or

         (c)   Matters about which only expert testimony would generally be admissible under the rules of evidence.

      (1)   If the court concludes that the error committed by the decision-making board is procedural only, the court may remand the case for further proceedings to correct the procedural error.

      (2)   If the court concludes that the decision-making board has erred by failing to make findings of fact such that the court cannot properly perform its function, then the court may remand the case with appropriate instructions so long as the record contains substantial competent evidence that could support the decision below with appropriate findings of fact. However, findings of fact are not necessary when the record sufficiently reveals the basis for the decision below or when the material facts are undisputed and the case presents only an issue of law.

      (3)   If the court concludes that the decision by the decision-making board is not supported by substantial competent evidence in the record or is based upon an error of law, then the court may remand the case with an order that directs the decision-making board to take whatever action should have been taken had the error not been committed or to take such other action as is necessary to correct the error. Specifically:

         (a)   If the court concludes that a permit was wrongfully denied because the denial was not based on substantial competent evidence or was otherwise based on an error of law, the court may remand with instructions that the permit be issued, subject to reasonable and appropriate conditions; and

         (b)   If the court concludes that a permit was wrongfully issued because the issuance was not based on substantial competent evidence or was otherwise based on an error of law, the court may remand with instructions that the permit be revoked.