The following sections contain provisions for enforcement of zoning regulations, remedies for violations and penalties for unresolved violations.

(Ord. No. 17-O-13, 8-8-2017)

(a)

Purpose and intent. This section establishes procedures through which the town seeks to ensure compliance with the provisions of this chapter and obtain corrections for chapter violations. It also sets forth the remedies and penalties that apply to violations of this chapter. The provisions of this section are intended to encourage the voluntary correction of violations, where possible.

(b)

Compliance required. Compliance with all provisions of this chapter is required. It shall be unlawful for any person to construct, reconstruct, alter, demolish, change the use of, or occupy any land, building, or other structure within the town in violation of this chapter.

(c)

Permits required. All persons, firms, and corporations shall obtain all permits required by the town prior to commencing any use or building within the town.

(d)

Responsible persons. Any person who violates this chapter shall be subject to the remedies and penalties set forth in this article.

(Ord. No. 17-O-13, 8-8-2017)

(a)

Responsibility for enforcement of zoning provisions. The zoning administrator shall enforce this chapter. The zoning administrator shall be provided with the assistance of such other persons as the town manager may direct.

(b)

Notice of violations. When the zoning administrator finds that any activity, building, structure, or land is in violation of this chapter, the zoning administrator shall notify, in writing, the person violating this chapter, as follows:

(1)

Content of notice. Such notification shall indicate the nature of the violation, order the necessary action to abate the violation, give a deadline for correcting the violation, and include an indication of the applicable appeal fee and a reference to where other information regarding the appeal process may be obtained regarding the filing of the appeal to the board of zoning appeals.

(2)

Fee. The fee for filing an appeal shall not exceed the costs of advertising the appeal for public hearing and reasonable costs.

(3)

Limitation on penalty during appeal process. Any civil penalty for appealed violations of the zoning ordinance shall not accrue or be assessed during the pendency of the period in which to file an appeal to the board of zoning appeals.

(4)

Action by zoning administrator. If a violation is not corrected within a reasonable period as provided in the notification, the zoning administrator shall take appropriate action to correct and abate the violation and to ensure compliance with this chapter. He or she shall take any other action authorized by law to ensure compliance with or to prevent violation of its provisions.

(c)

Complaints regarding violations. Whenever a violation of this chapter occurs, or is alleged to have occurred, any person may file a written or oral complaint. Such complaint shall state fully the alleged violation and the basis thereof, and shall be filed with the zoning administrator, who shall record the complaint. The zoning administrator shall promptly cause the complaint to be investigated, and action taken to abate or correct the violation.

(d)

Inspections to ensure compliance. Upon presentation of proper credentials, the zoning administrator may enter any building, structure, land, or premises to ensure compliance with the provisions of this chapter.

(Ord. No. 17-O-13, 8-8-2017)

(a)

Violations, generally. The following constitute general violations of this chapter:

(1)

Compliance failure. Any failure to comply with a requirement, standard, prohibition, or limitation imposed by this chapter, or the terms or conditions of any permit or other development approval or authorization granted pursuant to this chapter, shall constitute a violation of this chapter.

(2)

Noncompliance with permit. Permits issued on the basis of plans and applications approved by the town council, planning commission, board of zoning appeals, historic district review board, zoning administrator, or other officials or agencies where additional approval is required, authorize the use, arrangement, alteration, location, and construction set forth in such permits and development approvals, and no other use, arrangement, alteration, location, or construction.

(3)

Unauthorized development. Development, use, arrangement, location, or construction at variance with that authorized shall be deemed violations of this chapter, punishable as provided in this section.

(b)

Specific violations. In addition to the offenses listed in Table 78-170.4(a)(5), it shall be a violation of this chapter to do any of the following:

(1)

Unauthorized activity. Construct, reconstruct, alter, demolish, change the use of, or occupy any building, structure, or sign, or to engage in development or subdivision of any land in contravention of this chapter, including the conditions and terms of required permits and development approvals.

(2)

Unauthorized land disturbance. Excavate, grade, cut, clear, or undertake any other land disturbing activity contrary to the requirements of this chapter without first obtaining all approvals required by this chapter or other applicable regulations.

(3)

Unauthorized change in nonconformity. Create, expand, replace, or change any nonconformity except in compliance with this chapter.

(4)

Noncompliance with development standards. Reduce or diminish the lot area, setbacks, buffers, or open space below the minimum required by this chapter.

(5)

Unauthorized increase in density/intensity. Increase the intensity or density of use of any land or structure except in accordance with the requirements of this chapter.

(6)

Development without required permit. Construct, reconstruct, alter, demolish, change the use of or occupy any land, building, or other structure without first obtaining the appropriate permit or permit approval, or without complying with the terms and conditions of the permit or approval required to engage in such activity.

(7)

Failure to comply with terms of approval. Fail to comply with any terms, conditions, or limitations placed by the town council, planning commission, board of zoning appeals, historic district review board, or zoning administrator upon any development approval, including designation of a planned development (PD) zoning district classification and preliminary PD plan, special exception, variance, administrative adjustment, certificate of appropriateness, sign permit, temporary use permit, zoning inspection permit, zoning appropriateness permit, site plan, single lot development plan, building location plan, final PD plan, final plat for minor subdivision, preliminary plat for subdivision, final plat for subdivision, site grading permit, excavation permit, street name or name change, or other form of authorization.

(8)

Lapse in sign permit. Fail to remove any sign installed, created, erected, or maintained in violation of this chapter, or for which the sign permit has lapsed.

(9)

Noncompliance with certificate of appropriateness. Fail to comply with a certificate of appropriateness, which shall include the discontinuance of work or lack of progress toward achieving compliance with a certificate of appropriateness for a period of six months.

(10)

Unauthorized dwellings. Establish any unauthorized dwelling units as described in section 78-71.1(d)(3).

(Ord. No. 17-O-13, 8-8-2017; Ord. No. 20-O-61, § 1, 11-17-2020)

(a)

Penalties, fines and remedies for civil violations.

(1)

Penalties and fines. Except as provided in subsections (2) and (3) below, any person, firm or corporation who as the owner of any land, building or structure, or the agent thereof having possession or control of such property as employee, lessee, tenant, architect, builder, contractor or otherwise, who permits, assists in or attempts any violation of this chapter, whether by act or omission, shall be liable for a civil penalty for each individual offense described in Table 78-170.4(a)(5): Summary Table of Common Civil Violations. All civil violations shall be punishable by a fine of $200.00 for the initial violation and $500.00 for each additional violation of the same ordinance section.

(2)

Cumulative penalties. Each day during which the violation is found to have existed shall constitute a separate offense. However, specific violations arising from the same operative set of facts shall not be charged more frequently than once in any ten-day period and a series of specified violations arising from the same operative set of facts shall not result in civil penalties which exceed a total of $5,000.00.

(3)

Criminal action. Designation of a particular violation of this chapter for a civil penalty pursuant to this section shall be in lieu of criminal sanctions, and except for any violations resulting in injury to persons such designation shall preclude the prosecution of violation as a criminal misdemeanor, provided however, that when such civil penalties total $5,000.00 or more, the violation may be prosecuted as a criminal misdemeanor.

(4)

Limitations. No provision in this section shall be construed to allow the imposition of civil penalties (i) for activities related to land development or, (ii) for violation of any provision of this chapter relating to the posting of signs on public property or public rights-of-way.

(5)

Summary table of common civil violations and fines.

(b)

Penalties, fines and remedies for criminal violations.

(1)

Criminal violations. The following shall be treated as criminal violations of this chapter:

a.

Conduct of an unpermitted boarding house, unpermitted rooming house, unpermitted inn or unpermitted transient lodging business constitutes a criminal violation of this chapter.

b.

Specific violations arising from the same operative set of facts charged for three civil penalties, and persisting after the third civil penalty charge and after the time for its payment, shall constitute criminal violations of this chapter.

(2)

Penalties and fines. Any person, firm or corporation who as the owner of any land, building or structure, or the agent having possession or control of such property as employee, lessee, tenant, architect, builder, contractor or otherwise, knowingly refuses or neglects to comply with any written order issued by the zoning administrator to abate any violation of this chapter shall be guilty of a misdemeanor punishable by a fine of not less than $10.00 nor more than $1,000.00.

(3)

Remedy. If the violation is uncorrected at the time of the conviction, the court shall order the violator to abate or remedy the violation in compliance with this chapter, within a time period established by the court. Failure to remove or abate a zoning violation within the specified time period shall constitute a separate misdemeanor offense punishable by a fine of not less than $10.00 nor more than $1,000.00, and any such failure during any succeeding ten-day period shall constitute a separate misdemeanor offense for each ten-day period, punishable by a fine of not less than $10.00 nor more than $1,500.00.

(4)

Excess criminal penalty for unrelated persons violation. However, and notwithstanding the above subsections, any conviction resulting from a violation of provisions regulating the number of unrelated persons in single-family residential dwellings shall be punishable by a fine of up to $2,000.00. Failure to abate the violation within the specified period shall be punishable by a fine of up to $2,000.00, and any such failure during any succeeding ten-day period shall constitute a separate misdemeanor offense for each ten-day period punishable by a fine of up to $2,500.00. However, no such fine shall accrue against an owner or managing agent of a single-family residential dwelling unit during the pendency of any legal action commenced by such owner or managing agent of such dwelling unit against the tenant to eliminate an overcrowding condition in accordance with Code of Virginia ch. 13 or ch. 13.2 of tit. 55 (unlawful detainer), as applicable. A conviction resulting from a violation of provisions regulating the number of unrelated persons in single-family residential dwellings shall not be punishable by a jail term.

(c)

Cumulative remedies for violations. Except as provided in Code of Virginia § 15.2-2209, the remedies provided in this article are cumulative and not exclusive, and the designation of any violation of the provisions of this chapter as a criminal or a civil violation shall not be construed as prohibiting the town from utilizing any remedies in the Code of Virginia or from initiating appropriate injunctive, abatement, or other appropriate actions or proceedings to prevent, correct, restrain, or abate violations.

(Ord. No. 17-O-13, 8-8-2017; Ord. No. 20-O-61, § 1, 11-17-2020)

(a)

Notice of violation. If the zoning administrator, or a designee, determines that a civil violation has occurred, the zoning administrator, or a designee, may cause a notice of the violation to be served by certified mail on any or all persons committing or permitting such violation, in accordance with section 78-170.2(b), notice of violation. This notice of violation will serve as a civil summons or ticket for the scheduled violation.

(b)

Right to stand trial. Any person summoned or issued a ticket for a scheduled violation may make an appearance in person or in writing by mail to the department of finance, care of the department of community development prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged. Such persons shall be informed of their right to stand trial and that a signature to an admission of liability will have the same force and effect as a judgment of court.

(c)

Payment of penalty. The person waiving trial shall abate the violation and pay to the town the civil penalty prior to the date set for trial.

(d)

Violation to be tried. If a person charged with and contesting a scheduled violation does not elect to enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided by law. If the violation exceeds the jurisdictional limits of a general district court, the violation shall be tried in the county circuit court. In any trial for a scheduled violation authorized by this section, it shall be the burden of the town to show the liability of the violator by a preponderance of the evidence.

(e)

Liability. An admission of liability or finding of liability shall not be a criminal conviction for any purpose.

(Ord. No. 17-O-13, 8-8-2017)

In any district in which residential uses are allowed or legally exist, a dwelling unit shall be occupied only by a family as defined in Article XVIII, Definitions. Occupancy by any other entity or person shall constitute a violation of this chapter. All dwelling units shall be subject to the following standards:

(a)

Purpose. Notwithstanding any other provision of this chapter, and as an element of the use of land under this chapter to define and limit appropriate family use of dwelling units, occupancy of dwelling units shall be limited to the maximum number of occupants allowed by this section, to protect against threats to neighborhood quality that can accompany overcrowding of land, or undue density of population in relation to existing or available community facilities caused by excessive occupancy.

(b)

Occupant defined. For the purposes of this chapter, an "occupant" is defined as a person 18 years of age or older, living or sleeping in a building, or having possession of a space within a building.

(c)

Maximum occupancy, single-family dwellings. For single-family attached and detached dwellings or two-family dwellings, the maximum number of occupants of each dwelling unit shall not exceed the quotient of the floor area (measured in square feet) of the dwelling unit divided by the number set forth below, rounded up to the next whole number. The maximum occupancy of single-family dwelling units is as follows:

(1)

Up to 1,500 square feet. For a dwelling with a floor area up to 1,500 square feet, use 300 square feet.

(2)

Up to 2,100 square feet For a dwelling with a floor area from 1,501 square feet to 2,100 square feet, use 350 square feet.

(3)

Up to 2,800 square feet. For a dwelling with a floor area from 2,101 square feet to 2,800 square feet, use 400 square feet.

(4)

Up to 3,600 square feet. For a dwelling with a floor area from 2,801 square feet to 3,600 square feet, use 450 square feet.

(5)

Over 3,600 square feet. For a dwelling with a floor area greater than 3,601 square feet, use 500 square feet.

(d)

Maximum occupancy, multi-family. For multi-family dwellings, the maximum number of occupants of each dwelling unit shall not exceed the quotient of the floor area (measured in square feet) of the dwelling unit divided by 200, rounded to the nearest whole number.

(e)

Excessive occupancy, owner response. An owner of a dwelling unit that occupies or allows the occupancy of a dwelling unit by a number of occupants in excess of the maximum occupancy prescribed shall forthwith lower the occupancy to a level consistent with the limits of this chapter.

(f)

Excessive occupancy, occupant response. An occupant of a dwelling unit occupied by a number of occupants in excess of the maximum occupancy here prescribed shall forthwith lower the occupancy to a level consistent with the limits of this chapter.

(g)

Investigation of excessive occupancy. The town manager is authorized to investigate incidences of possible excessive occupancy in the town. In exercising the powers granted by this section, the town manager may inspect buildings according to the procedures set out in Code of Virginia, §§ 19.2-393—19.2-397 (or some comparable, later provisions), with necessary changes, for administrative enforcement, or general law of this commonwealth for criminal enforcement.

(h)

Injunction to limit occupancy. Upon the town manager's conclusion that there exists excessive occupancy of a dwelling unit, the town manager, on behalf of the town, may seek an injunction to limit, lower or control the number of occupants in the dwelling unit.

(i)

Conflict between zoning code and building code. This section addresses uses of land including occupancy of dwelling units under the town's zoning powers. Section 10-257, Herndon Town Code and the Virginia Uniform Statewide Building Code also address occupancy, but as a matter of building maintenance and health. In case of conflict between any of these sources, this section applies to questions of the use of land; as such application is determined by the zoning administrator. Section 10-257, Herndon Town Code or the Virginia Uniform Statewide Building Code applies to property maintenance or health issues; as such application is determined by the building official.

(Ord. No. 17-O-13, 8-8-2017)