Agenda 12-14-21; 5-a - Proposed Unified Development Ordinance Text Amendment – Modification of Enforcement Provisions Addressing Changes in State Law

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8 Approved December 1, 2021 54 Michael Harvey: We would seek an order of cessation and abatement through the court system. We could not seek criminal 55 charges any longer. The federal or state governments may be able to seek some sort of criminal redress but we cannot. 56 57 Perdita Holtz: The UDO deals with land use issues and there are other laws that apply to nuclear waste being dumped so 1 58 don't want people to go away thinking this is the only way for recourse. 59 60 Lamar Proctor: As a prosecutor of Orange County for 13 years, I have only had one case referred to me and that was by the 61 Carrboro Planning Department. The criminal court is really poorly equipped to deal with these sorts of cases that deal with 62 injunctions and civil penalties. You are much better off seeking injunctive relief and civil relief. If there's an environmental 63 problem or violation that gets to the level of state statutes,then the State Department of Environment Quality will jump in,the 64 AG's office and I have dealt with that. I had a case once with illegal sewage that was going into a stream. If it gets to a certain 65 level, state authorities would jump in. 66 67 Carrie Fletcher: What initiated this? 68 69 Michael Harvey: I wish I could tell you. I'm sure that local district attorneys did not want to deal with some of the idiosyncrasies 70 of a land use issue through a criminal proceeding. The burden of proof becomes more difficult for criminal proceedings versus 71 seeking an injunction or getting payment for civil penalty. It's probably an attempt to try to guarantee a more effective use of 72 the court's time. This only impacts the methods available with respect to the enforcement of local land use regulations. 73 74 Kim Piracci: Mine is more of a comment than a question. I actually feel better that Lamar feels ok with this because if he didn't 75 feel ok with it I would really feel not ok with it. In my mind there's what's legal and there's what's moral and ethical.Just 76 because the state is saying this, I can imagine a situation where there is a land use violation and it's pretty extreme and this 77 person doesn't care because nothing is really going to happen. Financially, he or she is going to come out ahead by breaking 78 the law so even though we have to do this, I'm going to vote no. I feel like this is a tool that might come in handy sometime 79 somewhere. I'm not trying to convince anybody else that they have to vote my way, I'm not getting it. 80 81 Michael Harvey: I respect your opinion. Unfortunately, this is not something that we're going to have the authority under state 82 law to pursue. I'm not saying that you are not entitled to your opinion and I'm certainly not saying you are wrong in an attempt 83 to diminish the value of your opinion. What I am saying is that the law no longer gives me this as a viable option to address an 84 identified violation of a local land use law. This is what I've been asked to do, state law no longer gives me the authority to do it 85 so we are eliminating it because state law has taken it out of our toolbox. 86 87 Kim Piracci: Right, and it doesn't matter how we vote the County Commissioners are going to do what they need to do 88 anyway. 89 90 Michael Harvey: Where we have violations that transcend land use issues,we've always had willing partnerships at the state 91 level to assist us and we not only involve state offices but also Orange County Solid Waste. I think that we have enough 92 arrows in the quiver to address the problem and effectively guarantee compliance. Yes,there's a component of the 93 enforcement strategy being eliminated, I don't think it's that effective. 94 95 Lamar Proctor: I do think that the State Legislature seems to have streamlined things for developers to make things easier for 96 economic development and I think part of that is because developers and lobbyist didn't want to be subject to criminal penalties 97 if something goes sideways on a land use thing. It could be an attempt to remove any threat for criminal prosecution. I do 98 understand Kim's point. Removing criminal penalties for egregious land use violations feels wrong but I agree with Michael 99 that most DA offices don't want to deal with those sort of cases. This doesn't strike me as giving away the environment. 100 101 102 AGENDA ITEM 4: ADJOURNMENT 103 The ORC session was adjourned at 8:04 p.m. 104 2