2. Ordinance 1523 - Zoning Enforcement Amendment - 1st ReadingCity of Kalispell
Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406) 758-7000 Fax - (406) 758-7758
REPORT TO: .honorable Mayor and City Council
FROM: PJ Sorensen, Zoning Administrator
James H. Patrick, City Manager
SUBJECT: Zoning Enforcement/Civil Infractions
MEETING DATE: January 18, 2005
BACKGROUND: At several prior Council workshops, there has been discussion related to
amending the enforcement section of the zoning ordinance. Essentially, a violation of the
ordinance would no longer be treated as a criminal misdemeanor. Instead, a violation would be
classified as a civil infraction. While the focus of some earlier work sessions has been on signs,
this approach, as discussed at the January 3 work session, would apply to the entire zoning
ordinance.
As a civil infraction, someone in violation of the ordinance would still be subject to fines,
an order to abate the violation, or other civil remedies. The Court could invoke its contempt
powers if the order is willfully disobeyed.
The primary difference between the current misdemeanor provisions and civil infractions,
other than removing the criminal label, is the process that would be followed. Currently, a
misdemeanor charge must be filed by the City Attorney's Office. The civil infraction process
involves the Zoning Administrator issuing a ticket which is then processed through the court
system.
RECOMMENDATION: A motion to approve the ordinance would be in order.
ALTERNATIVES: As suggested by the Council.
ATTACHMENTS: The existing language in the City Code providing for civil infractions is
attached along with the proposed ordinance.
Respectfully submitted,
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PJ Sorensen
Zoning Administrator
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James H. Patrick
City Manager
Report compiled January 10, 2005
ORDINANCE NO. 1523
AN ORDINANCE AMENDING ORDINANCE NO. 1175 CODIFIED AS A PORTION OF
THE KALISPELL ZONING REGULATIONS TO DECRIMINALIZE ZONING
VIOLATIONS AND MAKE SUCH ZONING VIOLATIONS CIVIL INFRACTIONS AND
DECLARING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA,
AS FOLLOWS:
SECTION 1 Ordinance No. 1175, codified under the Kalispell Zoning Regulations as
Kalispell City Code 27-36-010 is hereby amended to read as follows:
Penalty for Violation. Any person or corporation, whether owner, lessee,
principal agent, employee, or otherwise, who violates any provisions of
these regulations or permits any such violation or fails to comply with any
of the requirements thereof, or who erects, constructs, reconstructs, alters,
enlarges, converts, moves, or uses any building or uses any land in
violation of any detailed statement or plans submitted by him and
approved under the provisions of these regulations, may be subject to
penalties as a municipal infraction pursuant to Chapter 1, Article lI of the
Kalispell City Code. Each day of continued violation shall constitute a
separate, additional violation. The zoning administrator or his authorized
agent is hereby authorized to enforce the City of Kalispell Zoning
Ordinance by issuing a civil citation.
SECTION 2 This Ordinance shall be effective thirty (30) days from and after the date of
its final passage and approval.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR
THIS 18TH DAY OF JANUARY 2005.
Pamela B. Kennedy
Mayor
Attest:
Theresa White
City Clerk
For reference purposes, Chapter 1, Article II of the Kalispell City Code reads as follows:
ARTICLE II. MUNICIPAL INFRACTIONS
1-11: DEFINITIONS:
MUNICIPAL INFRACTION. Any violation of this code, as amended, which has been
specifically declared to be a municipal infraction under provisions of this code.
OFFICER: Any employee or official authorized to enforce provisions of this code, as
amended.
REPEAT VIOLATION: A recurring violation of the same section of this code. Each day
that a violation occurs or is permitted to exist constitutes a separate and distinct
infraction. (Ord. 1430, 8-5-2002)
1-12: MUNICIPAL INFRACTIONS; PENALTIES:
A. A. municipal infraction is a civil offense and for a proven violation, a civil penalty
may be imposed.
B. For a first violation, a civil penalty of not more than three hundred dollars
($300.00) shall be imposed.
C. For each repeat violation, a civil penalty not to exceed five hundred dollars
($500.00) shall be imposed.
D. Seeking a civil penalty as authorized in this article does not preclude the city from
seeking alternative relief from the court in the same action. (Ord. 1.430, 8-5-2002)
1-13: CIVIL CITATIONS; SERVICE AND REQUIREMENTS:
A. Any officer who is authorized by the city to enforce a municipal code or
regulation may issue a civil citation to a person who commits a municipal
infraction.
B. The citation may be served on the alleged violator by any one of the following
methods:
1. Personal service; or
2. By certified mail addressed to the defendant at the defendant's last known mailing
address, return receipt requested; or
3. By publication, in the manner described in rule 4D(5) of the Montana rules of civil
procedure.
C. A copy of the citation must be retained by the issuing officer and one copy be sent
to or filed with the clerk of the Kalispell municipal court.
D. The citation shall serve as notification that a municipal infraction has been
committed and shall contain the following information:
1. The name and address of the defendant;
2. The name or description of the infraction attested to by the officer issuing the citation;
3. The location and time of the infraction;
4. The amount of the civil penalty to be assessed or the alternative relief sought, or both;
5. The manner, location and time in which the penalty may be paid;
6. The time and place of court appearance; and
7. The penalty for failure to appear in court. (Ord. 1430, 8--5-2002)
1-14: COURT PROCEEDINGS:
A. If the total amount of civil penalties does not exceed three thousand dollars
($3,000.00), the matter shall be tried before the municipal court judge in the same
manner as a small claim.. If the total amount of civil penalties assessed exceeds
three thousand dollars ($3,000.00), the matter must be tried before a district court
judge.
B. The city has the burden of proof that the municipal infraction occurred and that
the defendant committed the infraction. The proof must be by clear and
convincing evidence.
C. The court shall ensure that the defendant has received a copy of the charges and
that the defendant understands the charges. The defendant may question all
witnesses who appear for the municipality and produce evidence or witnesses on
the defendant's behalf.
D. The defendant may be represented by counsel of the defendant's own choosing
and at the defendant's own expense.
E. The defendant may answer by admitting or denying the infraction.
F. If a municipal infraction is proven, the court shall enter judgment against the
defendant. If the infraction is not proven, the court shall dismiss the charges.
G. If the person named in the citation is shown to have been served with the civil
citation in the proper manner and, without good cause, fails to appear in response
to the citation, judgment shall be entered against the person by the court. (Ord.
1430, 8-5-2002)
1-15: DISPOSITION FOLLOWING JUDGMENT:
A. A person against whom judgment is entered shall pay court costs and fees as in
small claims court under title 25, chapter 35, Montana Code Annotated in addition
to the penalties imposed by the court. If the action is dismissed by the court, the
city is liable for the court costs and court fees.
B. All penalties and forfeitures collected by the court for municipal infractions shall
be remitted to the city in the same manner as fines and forfeitures collected for
criminal offenses.
C. In addition to the imposition of civil penalties authorized by law against a
defendant, the city may seek alternative relief from the court in the same action.
Alternative relief may consist of any of the following:
1. Direct that payment of the civil penalty be suspended or deferred under conditions
imposed by the court; or
2. Order the defendant to abate or cease the violation; or
3. Authorize the city to abate or correct the violation; or
4. Order the city's costs for abatement or correction of the violation be entered as a
judgment against the defendant or assessed against the property where the
violation occurred, or both.
a. The amount of costs imposed by the municipal court shall not exceed the jurisdictional
amount for a money judgment in a civil action under section 3-11-103, Montana
Code Annotated.
b. If the city seeks abatement or correction costs in excess of the jurisdictional limit
provided in subsection C4a of this section, the matter shall be referred to district
court for hearing and entry of an appropriate order. The procedure for hearing in
the district court shall be the same procedure as that for a small claims appealed
under section 25-35-803, Montana Code Annotated.
D. A defendant who wilfully violates the terms of an order imposed by the court is
guilty of contempt. (Ord. 1430, 8-5-2002)
1-16: APPEALS FOLLOWING JUDGMENT:
A. The defendant or the city may file a motion for a new trial or may appeal the
decision to district court.
B. A factual determination made by the trial court, supported by substantial evidence
as shown on the record, is binding for purposes of appeal relating to the violation
at issue, but is not admissible or binding as to any future violations for the same
or similar ordinance provision by the same defendant. (Ord. 1430, 8-5-2002)
1-17: ISSUANCE OF CIVIL CITATIONS NOT GROUNDS FOR FURTHER LEGAL
ACTION:
Except for wilful or wanton misconduct on the part of the city, the issuance of a civil
citation for a municipal infraction or the ensuing court proceedings do not provide
an action for false arrest, false imprisonment, or malicious prosecution. (Ord.
1430, 8-5-2002)
1-18: ENVIRONMENTAL ACTIONS:
An action brought by the city for an environmental violation does not preclude, and is in
addition to, any other enforcement action that may be brought under state law.
(Ord. 1430, 8-5-2002)