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HomeMy Public PortalAbout2010_01_26_O004 - TLOA 2009-0020 Excessive OccupancyThe Town o f ORDINANCE NO. 2010-0-004 PRESENTED: January 26, 2010 ADOPTED: January 26, 2010 AN ORDINANCE: AMENDING THE ZONING ORDINANCE ARTICLES 9, 17 AND 18 TO ENHANCE THE EFFECTIVENESS OF RESIDENTIAL EXCESSIVE OCCUPANY REGULATIONS IN LEESBURG The Town Council of Leesburg, Virginia, ordains: SECTION I. That the following sections of the Zoning Ordinance of the Town of Leesburg, Virginia, 2003, as amended, be and the same are hereby amended to read as follows: 1. Section 9.1.5 Prohibited Uses 9.1.5 Prohibited Uses A. Uses Prohibited in all Districts. The following uses are prohibited in all zoning districts within the Town of Leesburg: 1. Abattoirs and/or rendering plants; 2. Vehicle auctions; 3. Automobile graveyards; and 4. Solid waste landfills 5. Boarding Houses and Transient Lod~in~ B. Uses Prohibited in Certain Districts. In addition to those uses which are prohibited in all districts, other uses may be prohibited specifically or by inference in individual zoning districts. 2. Section 9.7 Dwelling~Unit OccupancX Section 9.7 Dwelling Unit Occupancy. In any district in which residential uses are permitted or legally exist, a dwelling unit shall be occupied only a family as defined in Zoning Ordinance Section 18.1.57. Occupancy by any other entity or person shall constitute a violation of this chapter. a. Residential occupancy of dwelling units shall be limited to the maximum number of occupants permitted by this Ordinance and by the Virginia Maintenance Code occupant limitations, to protect against threats to the public safety, health and welfare that can accompany overcrowding of land or undue density of population caused b~excessive occupancy.. -2- AN ORDINANCE: AMENDING THE ZONING ORDINANCE ARTICLES 9, 17 AND 18 TO ENHANCE THE EFFECTIVENESS OF RESIDENTIAL EXCESSIVE OCCUPANY REGULATIONS IN LEESBURG b. An owner or occupant of a dwelling_unit that occupies or permits the occupancy of a dwellin unit by a number of occupants in excess of the maximum occupancy prescribed shall reduce the occupancy to a level consistent with the limits of this Ordinance and the Virginia Maintenance Code occupancy limitations uQon notice of the Zoning Administrator or designee. c. Residential occupancy is prohibited in an,Lshed, boat, tent portable stora a unit recreational vehicle or similar device. An unauthorized dwelling unit within a building shall be presumed to have been created when Conti leous areas for living, sleeping, eating~cooking_and sanitation are desired in such a manner as to establish a distinct separate, and self-contained living or housekeeping unit. Unauthorized dwellin~~nits are prohibited. d. An unauthorized dwelling unit within a building exists when Conti ug ous areas for living, sleeping eating, cooking_and sanitation are designed in such a manner as to establish`two or more distinct, separate, self-contained living or housekeeping units. The existence of any one of the following conditions shall be considered to be an unauthorized dwellin unit. 1. A secured internal access/connection is maintained that prevents full access to all of the common living areas (exclusive of private bedroom bath areas) to all occupants of the dwelling: 2. More than one assi ed address or more than one electric, water or gas meter serving the dwelling unit. 3. Section 17.1 General 17.1.1Responsibility for Enforcement The Zoning Administrator shall have the authority and the duty to ensure that all buildings and structures and the use of all land complies with the provisions of this Zoning Ordinance. In acting to enforce this Zoning Ordinance, the Zoning Administrator, or authorized agent thereof, shall act in the name of the Town of Leesburg. The Zoning Administrator shall have all necessary authority on behalf of the Town Council to administer and enforce this Zoning Ordinance. A. Issuance of Inspection Warrants. The Zoning Administrator or designee may present sworn testimony to a magistrate or court of competent jurisdiction and if such sworn. testimony establishes probable cause that a Zoning_Ordinance violation has occurred, request that the magistrate or court grant the Zoning Administrator or desi~mee an inspection warrant to enable the Zoning Administrator ar designee to enter the subject dwelling for the purpose of determining whether violations of the Zonis Ordinance exist. The Zoning Administrator or designee shall make a reasonable effort to obtain consent -3- AN ORDINANCE: AMENDING THE ZONING ORDINANCE ARTICLES 9, 17 AND 18 TO ENHANCE THE EFFECTIVENESS OF RESIDENTIAL EXCESSIVE OCCUPANY REGULATIONS IN LEESBURG from the owner or tenant of the subject dwelling prior to seeking the issuance of an inspection warrant under this section. B. Authority to Petition Court. When the Zoning Administrator has reasonable cause to believe that any person has engaged or is en~a~ing in any violation of the Zoning Ordinance that limits occupancy in a residential dwelling unit and the Zoning Administrator or desi eng e, after a good faith effort to obtain the data or information necessary to determine whether a violation has occurred, has been unable to obtain such information, the Zoning Administrator may request that the Town Attorneypetition the fudge ofthe General District Court for a subpoena duces tecum a gig nay such person refusing to produce such data or information. The judge of the court, upon good cause shown, may cause the subpoena duces tecum to be issued. Any person failin tg o comply with such subpoena shall be subject to punishment for contempt by the court issuing the subpoena. Any person so subpoenaed may apply to the judge who issued the subpoena to uash it. 4. Section 17.1.2 Compliance Required 17.1.2 Compliance Required A. Any building or structure erected or any improvements constructed contrary to any of the provisions of this Zoning Ordinance and any use of any building or land which is conducted, operated or maintained contrary to the provisions of this Zoning Ordinance or the provisions of any approval granted by the Town under this Zoning Ordinance shall be a violation of this Zoning Ordinance and the same is hereby declared to be unlawful. B. Any person, firm or corporation, whether owner, lessee, principal, agent, employee or otherwise, who violates any of the provisions of this Zoning Ordinance, or permits any such violation, or who fails to comply with any of the requirements hereof, or who erects any building or structure or uses any building, structure or land in violation of the provisions of this Zoning Ordinance or the provisions of any approval granted by the Town under this Zoning Ordinance shall be subject to the enforcement provisions of this article. C. A written notice of a zoning violation or written order of the Zonin Administrator or designee sent by certified and first class mail to, or posted at, the. last known address of the property owner as shown on the current real estate tax assessment records shall be deemed sufficient notice to the property owner and shall satisfythe notice requirements under en~law. 5. Section 17.2.1 Criminal Violations and Sanctions -4- AN ORDINANCE: AMENDING THE ZONING ORDINANCE ARTICLES 9, 17 AND 18 TO ENHANCE THE EFFECTIVENESS OF RESIDENTIAL EXCESSIVE OCCUPANY REGULATIONS 1N LEESBURG 17.2.1 Criminal Violations and Sanctions A. Any violation of the provisions of this Zoning Ordinance, other than those expressly identified as constituting civil violations (See Sec. 17.2.2), shall be deemed Class 2 criminal misdemeanors and, upon conviction thereof, shall be punishable by a fine of not more than $1,000.00 for each separate offense. Each day during which the violation is found to have existed shall constitute a separate offense. However, 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. Failure to abate the violation within the specified time period shall be punishable by a fine of up to $5,000, and any such failure during any succeeding 10-day period shall constitute a separate misdemeanor offense for each 10-day period punishable by a fine of up to $7,500. No such fine shall accrue against an owner or mana i~ ng agent of such dwelling unit during the pendency of any legal action commenced by such owner or managing went of such dwelling unit a ag inst a tenant to eliminate an excessive occupancy condition. 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. B. The designation of a particular violation of this Zoning Ordinance as a civil violation pursuant to Sec. 17.2.2 shall preclude criminal prosecution or sanctions, except when such violation results in injury to a person or after the issuance of the third civil fine when the violation is for excessive occupancy of a dwelling unit. 6. Section 17.2.2 Civil Violations and Penalites 17.2.2 Civil Violations and Penalties A. The violation of any of the following ordinance provisions shall constitute a civil violation: 1. Zoning Permit (Sec. 3.7); 2. Fences and Walls (Sec.10.4.5.C.6); 3. Application for Occupancy Permit (Sec. 3.9); 4. Historic District Permit (Sec. 7.5.5); 5. Certificate of Approval (Sec. 7.6.4); 6. Sign Permit (Sec. 15.2); 7. Historic District Sign Permit: (Sec.15.11.1) 8. Prohibited Signs (Sec. 15.5); 9. Sign Requiring Temporary Sign Permit (Sec. 15.6.1); -5- AN ORDINANCE: AMENDING THE ZONING ORDINANCE ARTICLES 9, 17 AND 18 TO ENHANCE THE EFFECTIVENESS OF RESIDENTIAL EXCESSIVE OCCUPANY REGULATIONS IN LEESBURG 10. Maintenance of Signs (Sec.15.7.3); 11. Removal of Obsolete Signs (Sec.15.6.17.3.D); 12. Identification of Handicapped Parking (Sec.11.6.2.B.3). 13. Conformance with Certificate of Approval (Sec. 3.11.13) 14. Use Regulations-Residential (Sec. 5.1.2 thru 5.9.2) 15. Use Regulations-Commercial (Sec. 6.1.2 thru 6.7.2) 16. Use Regulations-MC District (Sec. 7.2.2) 17. Maximum Sound Levels-dBA (Sec. 7.9.3) 18. Prohibited Home Occupations (Sec. 9.4.3 D) 19. Use Limitation-HO (Sec. 9.4.3 E) 20. Minimum Yard Requirements (Sec. 10.4.5 C. 1-11) 21. Use of Parking and Loading Areas (Sec. 11.5 1-3) 22. Pavement Requirements (Sec. 11.6.1 D) 23.Outdoor Lighting (Sec. 12.11 A-C) 24. Dwelling~Unit OccupancX (Sec. 9.7) 25. Establishment of Boarding House/Transient Lod ig ng (Sec. 9..1..5) B. 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. Each day during which the violation is found to have existed shall constitute a separate offense. However, in no event shall specified violations arising from the same operative set of facts be charged more frequently than once in any ten (10) day period. C. In no event shall a series of specified civil violations arising from the same operative set of facts result in civil penalties that exceed a total of $5,000.00. When civil penalties for a zoning ordinance violation total $5,000 or more, or after the issuance of the third civil fine when the violation is for excessive occupanc~o~a dwelling unit, the violation may be prosecuted as a criminal misdemeanor. Nothing in this subsection shall be construed as prohibiting the Zoning Administrator from initiating civil injunction procedures in cases of repeat offenses. 7. Section 17.3.2 Civil Violations 17.3.2 Civil Violations A. Upon becoming aware of a civil violation of this Zoning Ordinance, the Zoning Administrator or authorized agent thereof may issue a ticket or civil summons for such civil violation. -6- AN ORDINANCE: AMENDING THE ZONING ORDINANCE ARTICLES 9, 17 AND 18 TO ENHANCE THE EFFECTIVENESS OF RESIDENTIAL EXCESSIVE OCCUPANY REGULATIONS IN LEESBURG B. If the person summoned or issued a ticket for a civil violation wishes to appeal the summons or ticket to the Board of Zoning Appeals, the appeal shall be taken within 30 days after the issuance of the summons or citation by filing with the Zoning Administrator, and with the Board of Zoning Appeals, a notice of appeal specifying the grounds thereof. C. Any person summoned or issued a ticket for a civil violation may make an appearance in person or in writing by mail to the Finance Department prior to the date fixed for trial in court, or, if no date has been fixed for trial, within 30 days from the date of issuance of the summons or ticket. 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. However, the appeal period for a notice of violation involving maximum occupancy limitations of a residential dwelling unit shall be ten (101 days from the date of the postmark on the certified first class mail and the notice shall so state. D. If a person charged with a violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the General District Court in the same manner and with the same right of appeal as provided for by law. An admission of liability or a finding of liability shall not be a criminal conviction for any purpose. 8. Section 17.4 Additional Remedies 17.4 Additional Remedies In addition to the remedies provided in this article, the Town Council, Town Manager or Zoning Administrator may bring legal action to insure compliance with this Zoning Ordinance, including injunction, mandamus, abatement or any other appropriate action or proceeding authorized by law, to prevent, enjoin, abate, or remove any unlawful building, structure or use. Such action may also be instituted by any citizen who may be aggrieved or particularly damaged by any violation of any provisions of this Zoning Ordinance. At ..any time after the filing of an iniunction or other appropriate proceeding to restrain. correct. or abate a Zoning Ordinance violation and where the owner of the real property is a part~to such proceeding, the Zoning Administrator or governing boderecord a memorandum of lis pendens pursuant to Code of Virginia Section 8.01-268. Any memorandum of lis pendens admitted to record in an action to enforce a zoning ordinance shall expire after 180 days. If the local real property and such owner subsequently transfers the ownerslu,_p of the real property to an entit i~hich the owner holds an ownership interest greater than SO -7- AN ORDINANCE: AMENDING THE ZONING ORDINANCE ARTICLES 9, 17 AND 18 TO ENHANCE THE EFFECTIVENESS OF RESIDENTIAL EXCESSIVE OCCUPANY REGULATIONS IN LEESBURG percent, the pending enforcement proceeding shall continue to be enforced a ainst the owner.. 9. Section 18.1.18.1 Boarding_House/Transient Lodging 18.1.18.1 Boarding House/Transient Lodging Any buildin~~other than a hotel, bed and breakfast, motel and commercial inn where far compensation or by prearrangement for definite periods, lodging lodging and meals, or meals are provided on a commercial basis for four (4)or more non-related persons. 10. Section 18.1.50 Dwelling Unit 18.1.50 Dwelling Unit A sin l~unit ~rovidin~complete, independent living facilities for a sin le faanil~, including provisions for living, sleeping eating and sanitation. 11. Section 18.1.57 Family 18.1.57 Family eat A person living alone, or any of the following_groups conforming to the limitations of the Virginia Maintenance Code and living together as a single nonprofit and non- commercial housekeeping unit, and sharing_common livin , sg leeping~cooking_and eatine facilities: 1) Subject to the Virginia Maintenance Code occupancy limitations, andnumber of persons all of whom are related by blood, marriage, adoption ~uardianshi~ or other -8- AN ORDINANCE: AMENDING THE ZONING ORDINANCE ARTICLES 9, 17 AND 18 TO ENHANCE THE EFFECTIVENESS OF RESIDENTIAL EXCESSIVE OCCUPANY REGULATIONS IN LEESBURG duly-authorized custodial relationship, as verified by official public records such as drivers licenses, birth or marriage certificates; or by affidavits. The Zoning Administrator ma~equire an affidavit in this re~,ard and may reject an~such evidence not in the form of an affidavit; or 2) U~ to four persons not related to one another by blood, adoption, guardianship, or other duly-authorized custodial relationship, as verified by official public records such as drivers licenses, birth or marriage certificates; or by affidavits. The. Zoninu Administrator ma~quire an affidavit in this regard and may reject any such evidence not in the form of an affidavit• or 3) Not more than eight persons who are: a. Residents of a residential facility as defined in § 15.2-2291, Code. of Virginia, or; b. Handicapped as defined in the Fair Housing Act, 42 USC §3602(h). This definition does not include persons cunentl~gall~ng or addicted to a "controlled substance" as defined in the Controlled Substances Act 21 USC 802 4) Subject to the Virginia Maintenance Code limitations, the following shall not be included in the number of persons who mi t comprise a family: Up to two persons who may be domestic workers (or one domestic worker and one minor child of the domestic worker), live-in companions to the elderly or disabled, or "au pair" employees. Anyone claiming a domestic worker, live-in companion to the elderly or disabled, or "au-pair" for an occupant must first verify to the Zoning Administrator the existence of a bona fide employment relationship or other contract which demonstrates the validity of such domestic worker, live-in companion or "au pair" status. 12. Section 18.1.82.1 Kitchen, accessory 18,1.82,1 Kitchen, accessory Associated with single-family dwellings, for use by the family residing within the dwelling unit, accessory or in addition to the first kitchen within the dwelling unit. Approval of an accessory or additional kitchen in a single-family dwelling shall not be considered approval of a second dwellin ug nit or accessory dwelling unit unless approved der Section 9.4.1 of the Zoning Ordinance. 13. Section 18.1.82.2 Kitchen 18.1.82.2 Kitchen An area within a dwellin ug nit equipped with such electrical or gas hook-up that would enable the installation of a range, oven or like appliance for the preparation of food and also containing, either or both a refrigerator and sink. -9- AN ORDINANCE: AMENDING THE ZONING ORDINANCE ARTICLES 9, 17 AND 18 TO ENHANCE THE EFFECTIVENESS OF RESIDENTIAL EXCESSIVE OCCUPANY REGULATIONS IN LEESBURG 14. Section 18.1.113.1 Occupancy, residential 18.1.113.1 Occupancy, residential Use of a buildin og r structure as a dwelling unit or place of abode'. 15. Section 18.1.113.2 Occupant 18.1.113.2 Oceu~ant Any person who is livin~or sleeping in a buildin,,.g; or having ,possession of a space within a buildin . SECTION II. All prior ordinances in conflict herewith are hereby repealed. SECTION III. Severability. If a court of competent jurisdiction declares any provision of this ordinance invalid, the decision shall not affect the validity of the ordinance as a whole or any remaining provisions of the zoning ordinance. PASSED this 26th day of Janu , 2010 Kris e C. U stattd, Mayor Town of Leesburg AT'~ST: ,i" ~ ,, f ~~.; :~ Clerk of Coun it P:\Ordinances~2010\0126 TLOA 2009-0010 Excessive Oceupancy.doc