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simple complaints are heard in courtrooms
<br />that deal with civil, quasi -criminal, or criminal
<br />violations of a minor nature. In some states,
<br />zoning violations are civil matters with a fine
<br />being the only punishment. In others, they
<br />are considered criminal matters for which a
<br />defendant can be sentenced to a fine or jail.
<br />The third classification of violations is quasi -
<br />criminal. These are civil in form but criminal
<br />in nature. In some jurisdictions, the court may
<br />have the power to order that the defendant
<br />comply with the code or be held in contempt
<br />of court. The court system determines in which
<br />courtroom the violations are heard. Typically
<br />zoning violations may share the docket with
<br />traffic tickets, building code violations, or
<br />other ordinance violations such as unlawful
<br />possession of alcohol by underage persons.
<br />A chancery court, or court of equity, is a
<br />court that has special powers to force a party to
<br />conform to the law using its contempt powers as
<br />well as the power to impose fines. Parties can
<br />force each other through the process of discov-
<br />ery to reveal information pertinent to the case
<br />priorto trial. A local jurisdiction may apply for an
<br />injunction to immediately halt the illegal activity.
<br />Judges appointed to chancery court are usually
<br />more experienced in zoning matters than in the
<br />courts that hear simple complaints.
<br />Some states may have criminal statutes
<br />that can be used in enforcement. For example, if
<br />someone is conductinga business that violates
<br />the use requirements ofthe zoning code and is
<br />polluting the environment, a criminal prosecu-
<br />tion can be pursued in addition to any zoning
<br />action that is appropriate.
<br />In deciding what type of action is appropri-
<br />ate, the following questions must be addressed.
<br />Will the defendant comply if a simple ordinance
<br />violation is brought? Will the court force the
<br />defendant to comply if an ordinance violation is
<br />charged? How complicated is the zoningviola-
<br />tion? Can the local jurisdiction afford the cost of
<br />an action in chancery?
<br />Unless it is clear that the issues are very
<br />complicated or the defendant is so defiant that
<br />compliance is unlikely, most local governments
<br />will choose to send a notice of violation and
<br />follow it up with a simple complaint against the
<br />defendant.
<br />If the defendant still refuses to comply,
<br />chargingthe defendant for each daytheviola-
<br />tion exists and asking for daily fines is the next
<br />step. Fines motivate most defendants.
<br />If compliance is not obtained with an
<br />ordinance violation prosecution, the local
<br />Key Provisions for Zoning Enforcement
<br />lithe zoning code is not properly drafted,
<br />it will be a barrier to enforcement. If a law
<br />is vague, courts will decide against the
<br />jurisdiction that adopted it.
<br />Well -functioning zoning codes and
<br />enforcement programs possess the fol-
<br />lowing characteristics:
<br />Specific provisions regarding who
<br />can enforce the zoning code and how
<br />that power can be delegated
<br />Language that is clear and direct with
<br />definitions of critical concepts and
<br />land uses
<br />Comprehensive provisions dealing
<br />with legal nonconforming uses
<br />Clear standards regarding regular
<br />versus special uses
<br />Violation provisions that are suf-
<br />ficient to deter illegal behavior (e.g.,
<br />provisions that make each day a new
<br />violation subject to a fine)
<br />Specific provisions for FirstAmend-
<br />ment activity (e.g., adult entertain-
<br />ment or noncommercial signs)
<br />Annexation provisions that adequate-
<br />ly address nonconforming uses in
<br />annexed territory
<br />Uniform application ofvariance criteria
<br />government still has the option of pursuing
<br />an action in chancery court seeking to force
<br />compliance on the defendant. Fortunately,
<br />most cases are resolved by filing an ordinance
<br />violation complaint, and few cases end up in
<br />chancery court.
<br />However, there are situations when
<br />chancery court should be used. If there is
<br />a threat to the public, the city may need an
<br />emergency injunction to stop the illegal and
<br />dangerous use. If the facts are complicated
<br />and depositions of witnesses are necessary,
<br />chancery court is the proper venue.
<br />CONCLUSION
<br />When a zoning violation occurs, enforcement
<br />should not be delayed in seeking compli-
<br />ance. The zoning official must understand
<br />the code provisions, follow the procedural
<br />requirements set forth in the code regarding
<br />who can enforce the code, gather the proper
<br />evidence, create and serve notice properly,
<br />and choose the proper venue for court. The
<br />zoning official should recognize that there
<br />are special considerations in cases involving
<br />conditional or special use permits, certifi-
<br />cates of zoning, illegal conversions, and legal
<br />nonconforming uses in order to be ready for
<br />the types of defenses or delays in litigation
<br />that may occur.
<br />ABOUT THE AUTHOR
<br />Linda S. Pieczynski is an attorney in Oak
<br />Brook, Illinois, who lectures and writes on
<br />code enforcement nationally. She is the
<br />author of Property Inspector's Guide to Codes,
<br />Forms and Complaints; Building Official
<br />and Inspector's Guide to Codes, Forms and
<br />Complaints; Fire Official and Inspector's
<br />Guide to Codes, Forms and Complaints;
<br />Residential Inspector's Guide to Codes, Forms
<br />and Complaints; and The Building Process
<br />Simplified, all published by Cengage.
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