Agenda - Planning Commission - 02/02/2017

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poration or LLC as well as information on the president and secretary of the corporation. If the entity is an LLC, it may list the name of the manager(s). These valuable sites can be used to confirm that the entity exists and provide addresses needed for proper notice. If a corporation or LLC is involuntarily dissolved, the officers and directors may be personally liable for the violation. lithe reg- istered agent cannot be served, most states allow service on the secretary of state as the default registered agent. NOTICES OF VIOLATION The zoning administrator must be familiar with what the zoning code requires for notices ofvi- olation. If there is a procedure set forth in the code, it must be strictly followed, otherwise a motion to dismiss by the defendant would be proper due to the lack of due process. The zoning official should also determine whether notice is required by the code. If so, who is entitled to serve the notice? What infor- mation must the notice contain? How must the notice be served? Even if notice is not required, sending notice is a helpful step to take because most people will comply once they are educated about the problem (e.g., failure to obtain a zoning certificate of compliance). If it is re- quired, notice should be sent individually to each responsible party (e.g., an owner and a tenant or spouses) to the place required by the code, often a last known address. When multiple parties are responsible, everyone should receive a notice. This increas- es the odds of compliance if at least one of the responsible parties responds to the notice of violation. If the code requires that the notice con- tain specific information, it must be in the no- tice. The zoning administrator can always add more information but never less than what is required. This usually includes the location's address, date of the inspection, the nature of the violation, the section of the code that was violated, date for compliance, and the process for an appeal. If the code requires that the notice be served in a specific way, that procedure must be followed. Frequently, notice may be served by regular mail, certified mail, in person, by posting it on the property in ques- tion, or by notice in the newspaper if the responsible party cannot be found. A corpo- ration or LLC can be notified properly by serv- Clear definitions and standards for outdoor storage are important for interpreting zoning violations. ing the registered agent. It is very important to consult the code to be sure the chosen method is allowed. Failure to serve the notice properly can result in a motion to dismiss and will delay compliance. TYPES OF EVIDENCE The most important evidence in a zoning enforcement case are the observations of the zoning administrator or inspector. This is why it is very important that the zoning adminis- trator or inspector gathers the evidence in a systematic way. Good notes are crucial so they can be used to refresh the witness's testimony regarding statements made by the defendant to the witness. Admissions by responsible parties are important in proving the case. Defendants often make admissions dur- ing conversations or while exchanging emails or texts with the inspector. These are admis- sible against the defendant as long as the inspector can testify about when the admis- sion was made, who was present, and what was said. Photographs of the zoning violation can be used to corroborate the observations of the witness. Aerial photographs are frequently used in zoning cases, especially when it is alleged by the defendant that there is a legal nonconforming use. The photographs may show that the initial legal use of the property was expanded and changed over time, thereby cancelling the legal nonconforming use of the property. For example, an auto junkyard may have been legal when it was created as a busi- ness, but if the area where the salvage mate- rial is located has tripled in size since that time, the legal nonconforming use may have been extinguished. A certified copy of the local government's zoning map can be used to prove the zoning classification of the area in question. If business records are used as evidence, the inspector or another witness must estab- lish that they were kept in the ordinary course of business and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. It is permissible to visit a business "un- dercover," that is, pretending to be a patron. For example, ifa person is repairing vehicles at a single-family residence, and that is not a permitted home occupation, it is legal to ask the violator to perform a service on a vehicle, such as an oil change, and then use that as evidence of the illegal activity. One of my favorite examples of under- cover activity dealt with a salon that was illegally using the basement of a building for spa treatment rooms. The zoning certificate of occupancy did not cover that space because it was not protected by a sprinkler system. The owner denied using the space and said that all business was being conducted at the street level. The village sent a female inspec- tor into the business to get a pedicure, which ZONINGPRACTICE i.i7 AMERICAN PLANNING ASSOCIATION I page 4