[Added 7-15-2008 by Ord. No. 158-08[1]]
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Preamble. Pursuant to its authority under the
Home Rule Amendment, its police powers and its authority under MGL
c. 40, § 21; MGL c. 40, § 41A and MGL c. 41, § 69B,
the City enacts this ordinance to implement the City's authority to
regulate, curtail and restrain the use of the public water supply
in times of emergency.
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Editor's Note: This ordinance also reinstated
the provisions of Ord. No. 271-01, adopted 7-17-2002, which had expired.
The purpose of this article is to protect, preserve
and maintain the public health, safety and welfare by regulating,
curbing, restraining, and shutting off in whole or in part the supply
of public water within the City of Fitchburg in times of emergency.
The article provides for enforcement of any orders, restrictions,
requirements, regulations, provisions or conditions imposed by the
City or by the Massachusetts Department of Environmental Protection.
As used in this article, the following terms
shall have the meanings indicated:
The City of Fitchburg.
The Massachusetts Department of Environmental Protection
or its lawful successor in interest.
Watering outside of any place of human habitation, business
or outside of any structure.
Any individual, corporation, trust, partnership or association,
or other entity.
A state of water supply conservation declared by the City pursuant to § 177-21 of this article.
A state of water supply emergency as declared by the Department
of Environmental Protection under MGL c. 21G, §§ 15
to 17, or by any other authority or power of the Department.
The flow or use of water from or affecting the public water
supply for the purpose of human or animal consumption, hygiene or
for cleaning or washing any surface, thing or object.
All public and private users of the City's public water system,
irrespective of any person's responsibility for billing purposes for
water used at any particular facility.
The City, acting by and through its Mayor, may declare a state of water supply conservation upon a determination that a shortage, or threat of shortage, of water exists or that conditions affecting the quantity or quality of water in the City require conservation measures to ensure an adequate supply of clean, potable high-quality water to all water consumers. The Mayor shall make this determination, in writing, and shall provide public notice under § 177-23 of this article before it may be enforced.
A declaration of a state of water supply conservation may include, inter alia, one or more of the following orders, restrictions, conditions, or requirements limiting the use of water as necessary to protect the water supply. The written declaration of emergency shall state which applicable orders, restrictions, conditions or requirements shall be enacted with sufficient specificity so as to give notice to all water users. The Mayor shall include these in the public notice required under § 177-23. For the purpose of such a declaration the following restrictions or orders shall have the meanings herein described:
A.
Odd/even day outdoor watering: Outdoor watering by
water users with odd-numbered addresses is restricted to odd-numbered
days. Outdoor watering by water users with even-numbered addresses
is restricted to even-numbered days. If for any reason this simple
division of the water users is inapplicable to any particular water
user then the Deputy Commissioner for Water shall designate, in writing,
for any such persons whether they fall into the "odd" or "even" category.
B.
Outdoor watering ban: Outdoor watering is prohibited.
This prohibition may prohibit either all or only some kinds of outdoor
watering as determined by the discretion of the Mayor.
C.
Outdoor watering hours: Outdoor watering is permitted
only during periods of low demand, as specified in the declaration
of a state of water supply conservation and in the public notice thereof.
D.
Filling swimming pools: Filling of, or adding water
to, swimming pools is prohibited.
E.
Automatic sprinkler use: The use of any kind of automatic
sprinkler systems is prohibited.
F.
Miscellaneous restrictions. The Mayor may prohibit
one or all kinds of outdoor watering either outright or by limiting
such uses to specified days, times or any other reasonable restrictions
or prohibitions on outside watering.
To be valid and enforceable, notification of
any provision, restriction, requirement or condition imposed by the
City as part of a state of water supply conservation shall be published
in a newspaper of general circulation within the City, or by such
other means reasonably calculated to reach and inform all users of
water of the state of water supply conservation. Any restriction imposed
under this article shall not be effective until such notification
is provided. Notification of the state of water supply conservation
shall also be simultaneously provided to the Massachusetts Department
of Environmental Protection.
A state of water supply conservation may be terminated by written declaration of the Mayor, upon a determination that the emergency no longer exists. Public notification of the termination of a state of water supply conservation shall be given in the same manner required by § 177-23.
Upon notification to the public, or to the City,
that a declaration of emergency has been issued by the Department
of Environmental Protection, the declaration shall take effect within
the City as though it were a declaration issued under this article
by the Mayor. Violation of the terms and conditions of this declaration
shall be enforced by the City under the provisions of this article.
No person shall violate any such emergency provision, restriction,
requirement, condition or order approved or issued by the Department
intended to alleviate the state of emergency.
In the absence of specific language to the contrary,
each section, each provision or requirement of any section of this
article shall be considered separable, and the invalidity of any portion
of this article shall not affect the validity or enforceability of
any other portion. If any provision, subsection, word or section of
this article is invalidated by any court of competent jurisdiction,
the remaining provisions, subsections, words and sections shall not
be affected and shall continue in full force and effect.
It is the intent of the City of Fitchburg, acting
by and through its legislative and executive branches, to prohibit
certain behaviors and conduct as set forth in this article consistent
with the constitutions of the United States and the Commonwealth of
Massachusetts and the statutory provisions of the Commonwealth of
Massachusetts. Any ambiguity or doubt in interpreting or construing
any section, word or provision of this article shall be resolved in
a manner so as to further the expressed intent of the article.
A.
The City may enforce the provisions of this article
by any or all of the means described herein in any court of competent
jurisdiction, by civil actions for equitable or other relief, by criminal
actions, or by noncriminal disposition in accordance with MGL c. 40,
§ 21D. Each day of violation shall constitute a separate
offense. The Department of Public Works, and its designees and/or
members of the Police Department, duly appointed, shall enforce the
provisions of this article.
B.
If any person commits any act or refrains from doing
any act required under the provisions of this article, the emergency
regulations and/or orders adopted pursuant to it, the City Solicitor,
on behalf of the City, may commence an action for appropriate legal
and/or equitable relief in any court having jurisdiction.
C.
The remedies described in of this section shall be
available notwithstanding the pendency of any administrative action
or hearing, and the City shall not be required to conduct any administrative
hearing or implement any administrative proceeding notice or issue
any order in order to seek judicial relief.
D.
Any person found in violation of this chapter or in
violation of any written order promulgated pursuant hereto shall be
fined in accordance with the following schedule:
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Offense
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Fine
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First offense
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$150
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Second offense
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$200
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Third and subsequent offenses
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$300
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E.
Notwithstanding the provisions of Subsection D, whoever violates any provision of this article may, in the discretion of the enforcing authority or his/her duly authorized agent, be charged with a noncriminal complaint filed in the District Court or Housing Court pursuant to the provisions of MGL c. 40, § 21D. For purposes of such noncriminal enforcement, the penalty shall be as follows: $75 for the first offense; $100 for the second offense; and $200 for the third offense. Each day on which a violation exists shall be deemed a separate offense. The enforcing authority may alternatively seek equitable relief in the appropriate court to obtain compliance with this chapter or his or her orders.
[Amended 6-3-2014 by Ord.
No. 100-2014]
F.
The prohibitions and requirements of this chapter
establish duties within the meaning of MGL c. 40, § 31.
If any person neglects to perform any duty so imposed or violates
any duty hereby imposed, the enforcing authority, or his/her designee,
may perform such duties at the expense of the person liable to perform
them. Such expense may be recovered by a civil suit for breach of
contract.
G.
The City may also impose a municipal charges lien
within the meaning of MGL c. 40, § 58, for any expense,
fine, fee or charge assessed under this chapter if it is not paid
by the due date.
H.
If any check in payment for any service, fee, charge
or fine imposed by this chapter is not duly paid or honored, the Treasurer
of the City shall send notice and demand to the payor of the check.
Upon such notice and demand, in addition to any other penalty provided
by law, there shall be imposed a penalty in an amount equal to 1%
of the amount of the check; provided, however, that if the check is
less than $1,500, the penalty shall be $25. A person upon whom such
penalty is imposed may, within 60 days of the imposition of the penalty,
appeal, in writing, to the Commissioner of Revenue pursuant to MGL
c. 44, § 69.
I.
The Commissioner of Public Works, or his/her designee,
may, in their discretion, discontinue water service to any water user
who is found to be in violation of any provision of any term, condition
or order in any declaration issued under the provisions of this article.
To discontinue water service under this section, the Deputy Commissioner
shall first give written notice to the persons residing or occupying
the land and/or building at which the violation is occurring, and
to the owner at the address listed in the office of the Assessors
if the building is not owner-occupied. The notice shall advise the
recipients of the date of termination of service and give the persons
to whom it is directed or whom it affects the right to a hearing before
the discontinuance shall occur. A person may request a hearing within
five days of the service of the notice, and the hearing shall be held
before the Commissioner of Public Works or his/her designee. The decision
after hearing shall be in writing and the Commissioner may condition
the continuance of water service upon the payment of any fines or
civil penalties to which the person is subject.
J.
If the nature and/or the degree of the violation and
the violator's refusal to comply with the declaration of emergency
requires immediate termination of service which will not permit the
delay of a pre-termination hearing, the Commissioner may discontinue
water service upon such notice as is reasonable given the emergency
and the attendant circumstances. In such cases the person whose service
has been discontinued shall have the right to a post-termination hearing
as soon as possible after termination in which to present claims that
the service should be restored and any other relevant facts supporting
the reinstatement of water service.
K.
Cumulative penalties. The penalties, remedies and
sanctions established by this chapter are cumulative and not exclusive.
The City may pursue any or all of the enforcement actions described
in this article.
All other ordinances and parts of other ordinances
inconsistent or conflicting with any part of this article are hereby
repealed to the extent of such inconsistency or conflict.
