Department of Community Development
Reference: LUDC Articles 1 and 2 Code Amendments - Development Enforcement Mechanisms
To: Mayor Gregory Mills and Members of the City Council
Through: Michael P. Martinez, City Manager
Prepared By: Holly Prather, AICP, Director of Community Development
Date Prepared: October 4, 2024
PURPOSE
As directed by the City Council, consider modifications to Articles 1 and 2 of the Land Use & Development Code (LUDC) to add enforcement mechanisms for violations of the development code.
The LUDC currently has some limited provisions with respect to violations, enforcement, and penalties of the code. The City Council has directed city staff to strengthen these provisions by amending them to include additional criteria for violations, outlining enforcement mechanisms, clarifying the enforcement procedures, and other items associated therewith which will be discussed in further detail in this report.
The City Council should refer to the section outlined in the LUDC’s Section 2.10, Code Amendments, B. Review Criteria when making its determination. These criteria generally include, but are not limited to, furthering the purposes of the LUDC, amendments being in accordance with the Comprehensive Plan, promoting the public safety, health and general welfare of the community, and improving the effectiveness and efficiency of administering the LUDC.
BACKGROUND AND SUMMARY OF AMENDMENTS
At the regular City Council meeting held on June 4, 2024, Agenda Item 9.C. Development Review Discussion, the City Council generally discussed holding developers accountable if they have not met their development obligations. At that meeting, City Council requested city staff to consider the creation of reporting and enforcement tools related to a development’s obligations.
At that same meeting, City Council asked city staff to prepare their recommendations for a study session meeting to be held on July 9th. The item was later moved by the City Council from July 9th to August 13th to ensure that all City Council members were in attendance for the discussion. City staff presented their recommendations to the City Council at the August 13th study session and received general feedback to move forward with the proposed recommendations.
City staff has drafted an ordinance (see attachment) incorporating the recommendations as presented to the City Council. Please see the sections below for a brief overview of the proposed amendments to the LUDC.
LUDC, Article 1. General Provisions
Section 1.04:
City staff is proposing to amend the existing Section 1.04 Enforcement in its entirety. Currently, the LUDC lists out separate sections for violations, enforcement, and penalties all within Section 1.04. The proposed draft ordinance would instead result in Section 1.04 being entirely focused on violations and would add a new section, 1.06 for the enforcement provisions, and a new section 1.07 for penalties.
Generally, for the existing section 1.04, city staff is proposing to remove all of the existing generic language and replace it with more specific language as to what may constitute a violation. The draft language includes failure to comply with not only the LUDC, but also any other regulation as adopted by another City Department. Additionally, city staff is expanding beyond violations of just the LUDC and includes any violations of any agreement or an approved plat. The reason for this is because many development obligations, particularly the timing of installation or construction of public infrastructure are often determined for each individual development and are set forth in an annexation or development agreement and/or are noted in plat documents. (See Section 1, A of the draft ordinance for proposed language.)
City staff is also including language about failing to comply with any conditions that may be attached to a permit or any other development approvals that would fall under the purview of the City Manager or a designated staff person. (See Section 1, B of the draft ordinance for proposed language.)
Language has also been added regarding illegally subdividing property (see Section 1, C through E of the draft ordinance for proposed language) and language has been added regarding the obstruction or removal of any notice that is posted or otherwise given (see Section 1, F of the draft ordinance for proposed language), and not interfering with city staff in performing their duties (see Section 1, G of the draft ordinance for proposed language).
Lastly, language has been added that for every day a violation continues, it is considered a separate violation in regard to charging a person for a violation or for computing penalties (see Section 1, I of the draft ordinance for proposed language.)
{New} Section 1.06:
As previously mentioned, the draft ordinance would create a separate section for enforcement procedures. This section sets forth that the Community Development Director (CDD) shall be responsible for enforcement and may inspect properties to determine if violations exist (see Section 2, A and B of the draft ordinance for proposed language.)
The section also lists out the potential remedies that the city may utilize to enforce the provisions of the code, which include: withholding a building permit or certificate of occupancy; withholding other permits and approvals; withholding water taps or water service; revocation of a permit or approval; suspension of a license; the issuance of a stop work order; abatement; injunctive relief; utilization of Municipal Code Article 1-24 powers, which may include incarceration and/or fines; city abatement and recovery costs; and other powers as may be permitted by law. (See Section 2, C. 1 through 11 of the draft ordinance for proposed language.)
Finally, the section sets forth the enforcement procedures for both emergency and non-emergency matters.
For non-emergency matters, the city may give written notice by either: delivering a copy to the occupant, property owner, or holder of the permit approval; leaving a copy of the notice with an agent of the premises and by mailing a copy to the property owner; or if no one can be found on premises, placing a copy in a conspicuous place near the entrance. The section also sets for the amount of time in which to correct the violation, typically 10 calendar days but does allow the CDD to shorten or lengthen the timeframe based on the nature of the violation or other unique circumstances. If the violation is not corrected within the timeframe provided, a summons may be issued to appear in municipal court. (See Section 2, D. Enforcement Procedures. 1 Non-emergency Matters of the draft ordinance for proposed language.)
For emergency matters, which are those that constitute an immediate threat to the public health and safety, or an emergency with the potential to create substantially increased problems, costs, or liabilities for the city if not remedied immediately, the city may take action simultaneously with giving notice. (See Section 2, D. Enforcement Procedures. 2 Emergency Matters of the draft ordinance for proposed language.)
{New} Section 1.07:
As previously mentioned, the draft ordinance would create a separate section as it relates to potential penalties. This section establishes that for each day the violation exists, it is considered a separate violation for each day of occurrence and that they are punishable in accordance with the Municipal Code, Section 1-24. (See all of Section 3 of the draft ordinance for proposed language.)
Article 2
Section 2.02(D) (2):
City staff is proposing to amend this section, particularly sub-sections c and d. Section c is proposed to be revised to read as, “The Planning Commission shall hold a public hearing and make a recommendation on the subdivision plan. Once a recommendation has been made by the Planning Commission, the subdivision plan shall be scheduled for a public hearing at the City Council for approval of the subdivision plan and acceptance of all public lands or proposed facilities. Provided no substantive changes are made between approval by the City Council and final engineering in association with a final plat, a final plat may be administratively approved by staff according to subsection 2.02.E.” {Emphasis added} (See Section 4 of the draft ordinance for proposed language.)
The section in the LUDC currently provides that the Planning Commission approves the subdivision plan and that the City Council doesn’t approve it, but instead, accepts the public lands or proposed facilities. This could create a legal quagmire if challenged in an instance where the Planning Commission were to approve the subdivision plan, but the City Council decided not to accept the public lands or facilities. Therefore, the language has been revised to reflect that the Planning Commission makes a recommendation on a subdivision plan and then the City Council would have approval authority, along with its current ability to accept the public lands or facilities. Due to this change, sub-section d of the existing code needed to revised as well as it references approval by the Planning Commission.
Lastly, the City Council directed city staff to require that an applicant or a representative of the applicant be present for any hearings before any reviewing body to provide testimony and answer questions that may arise during the hearing process. Therefore, a new section has been added to the code requiring this. (See Section 5 of the draft ordinance for proposed language.)
RECOMMENDATION BY THE PLANNING COMMISSION
At the September 26th meeting, Planning Commission unanimously recommended approval of a resolution for the City Council to favorably consider the proposed code amendments with a 3-0 vote.
CRITERIA BY WHICH THE CITY COUNCIL MUST CONSIDER THE ITEM
LAND USE & DEVELOPMENT CODE:
Modifications to the Land Use & Development Code must meet the following criteria when considered for adoption:
1. The amendment furthers the purposes of these regulations in Section 1.01.C.
2. The amendment is in accordance with the Comprehensive Plan and has been considered for both its long-range effects as well as immediate impacts.
3. The amendment promotes the public safety, health and general welfare of the community in the City of Brighton.
4. The amendment improves the effectiveness and efficiency of administering the Land Development Code.
PUBLIC NOTICE AND INQUIRY
Notice of the public hearing was published on the City of Brighton website at least 15 days prior to the public hearing, as required by Section 2.01 F of the LUDC. City staff will be publishing notice on social media outlets in the days leading up to the meeting.
SUMMARY OF FINDINGS AND STAFF RECOMMENDATION
Staff finds that the proposed code amendments generally meet the review criteria outlined in Section 2.10, Code Amendments, B. Review Criteria, of the LUDC and is therefore recommending approval of the code amendments.
OPTIONS FOR CITY COUNCIL CONSIDERATION
The City Council has four options when reviewing the Code Amendment application. The City Council may:
1. Approval the code amendments as drafted;
2. Not approve the code amendments;
3. Approve the code amendments with changes; or
4. Continue the item to be heard at a later, specified date.
ATTACHMENTS
● Draft City Council Ordinance
● PC Resolution
● Website Notice
● Draft City Staff Presentation