PLANNING AND ZONING
ADMINISTRATIVE AND ENFORCEMENT PROCEDURES
Penalties and Remedies
676:17-a Cease and Desist Orders.
The building inspector, code enforcement officer, zoning administrator or other official designated as an enforcement authority by ordinance or resolution of the local legislative body may issue a cease and desist order against any violation of this title, any local ordinance, code or regulation adopted under this title, or any provision or specification of an application, plat, or plan approved by, or any requirement or condition of a permit or decision issued by, any local administrator or land use board acting under the authority of this title, subject to the following:
I. The order shall state, in writing:
(a) The precise regulation, provision, specification or condition which is being violated.
(b) The facts constituting the violation, including the date of any inspection from which these facts were ascertained.
(c) The corrective action required, including a reasonable time within which such action shall be taken.
(d) A statement that a motion for summary enforcement of the order shall be made to the court of the district in which the property is situated unless such corrective action is taken within the time provided, or unless an answer is filed within 20 days, as provided in paragraph V.
(e) A statement that failure to either take the corrective action, or to file an answer, may result in corrective action being taken by the municipality, and that if this occurs the municipality's costs shall constitute a lien against the real estate, enforceable in the same manner as real estate taxes, including possible loss of the property if not paid.
II. The order shall be served upon the record owner of the property or the record owner's agent, and upon the person to whom taxes are assessed for the property, if other than the owner, and upon any occupying tenant of the property, and upon any other person known by the enforcing officer to exercise control over the premises in violation, and upon all persons holding mortgages upon such property as recorded in the office of the register of deeds, in the same manner provided for service of a summons in a civil action in district court. Personal service may be made by a sheriff, deputy sheriff, local police officer, or constable. If the owner is unknown or cannot be found, the order shall be served by posting it upon the property and by 4 weeks' publication in a newspaper in general circulation in the municipality.
III. Upon service of the order, the owner or the owner's agent, occupying tenant or the tenant's agent, or any other person who is engaged in development, construction, excavation, or other changes of the land or buildings on the land shall cease immediately such activities, if so provided in the order, until such time as judgment is rendered under paragraphs VI or VII. Failure to cease such activity shall constitute a separate violation of this title in addition to the violation cited in the order, unless such order is annulled as provided in paragraph VII.
IV. A copy of the order with proof of service shall be filed with clerk of the district court of the district in which the property is located not fewer than 5 days prior to the filing of a motion to enforce under paragraph VI.
V. Within 20 days after the date of service, any person upon whom the order is served may serve an answer in the manner provided for the service of an answer in a civil action, specifically denying such facts in the order as are in dispute.
VI. If no answer is served, the enforcement official may move the court for the enforcement of the order. If such a motion is made the court may, upon the presentation of such evidence as it may require, affirm or modify the order and enter judgment accordingly, fixing a time after which the governing body may proceed with the enforcement of the order. The clerk of the court shall mail a copy of the judgment to all persons upon whom the original order was served.
VII. If an answer is filed and served as provided in paragraph V, further proceedings in the action shall be governed by the rules of the district court. If the order is sustained following trial, the court shall enter judgment and shall fix a time within which the corrective action shall be taken, in compliance with the order as originally filed, or as modified by the court. If the order is not sustained, it shall be annulled and set aside. If it appears to the court that the order was frivolous, was commenced in bad faith, or was not based upon information and belief formed after reasonable inquiry or was not well-grounded in fact, then the court shall order the defendant's costs and reasonable attorneys fees to be paid by the municipality. The clerk of the court shall mail a copy of the judgment to the persons upon whom the original order was served.
VIII. If a judgment is not complied with in the time prescribed, the local governing body may cause the corrective action to be taken as set forth in the judgment. The cost to the municipality of taking such corrective action together with its other expenses as provided in paragraph IX, shall be a lien against the real estate on which the violation occurred, which shall continue for 18 months from the date upon which the expense account is allowed by the court, as provided in paragraph IX.
IX. The municipality shall keep an accurate account of the expenses incurred in carrying out the order and of all other expenses in connection with its enforcement, including but not limited to filing fees, service fees, publication fees, the expense of searching the registry of deeds to identify mortgages, witness and expert fees, attorneys fees and traveling expenses. The court shall examine, correct if necessary, and allow the expense account. The municipal governing body, by majority vote, may commit the expense account to the collector of taxes, in which case the mayor, as defined by RSA 672:9, shall direct the expense account, together with a warrant under the mayor's hand and seal, to the municipal tax collector, requiring the tax collector to collect the same from the person to whom real estate taxes are assessed for the premises upon which such corrective action was taken, and to pay the amount so collected to the municipal treasurer. Within 30 days after the receipt of such warrant, the collector shall send a bill as provided in RSA 76:11. Interest as provided in RSA 76:13 shall be charged on any amount not paid within 30 days after the bill is mailed. The collector shall have the same rights and remedies as in the collection of taxes, as provided in RSA 80.
X. A party aggrieved by the judgment of the district court may appeal, within 15 days after the rendering of such judgment, to the superior court.
XI. The remedy provided in this section is supplementary to other enforcement remedies provided by this chapter or local ordinance. At the discretion of the local enforcement official, an action to enforce a cease and desist order under this section may be joined with an action under RSA 676:17, I, and the cease and desist order shall constitute the written notice under RSA 676:17, I(b).
Source. 1991, 328:1. 1996, 226:7, 8. 1997, 79:1, eff. Jan. 1, 1998.