[HISTORY: Art. I adopted by the Annual Town Meeting 4-17-1990 by Art. 19. Amendments noted where applicable.]
[Adopted ATM 4-17-1990 by Art. 19]
This Article is adopted by the Town of Southwick under its home rule powers, its police powers to protect public health and welfare and its specific authorization under MGL C. 40, §§ 21 and 21D.
The purpose of this Article is to protect, preserve and maintain the public health, safety and welfare whenever there is in force a state of water supply emergency by providing for enforcement of any imposed restrictions, requirements, provisions or conditions imposed by the town or by the Massachusetts Department of Environmental Protection and included in the town's plan approved by the Massachusetts Department of Environmental Protection to abate the emergency.
For the purpose of this Article, the following terms shall have the meanings indicated:
- ENFORCEMENT AUTHORITY
- The town's Board of Water Commissioners or other department or board having responsibility for the operation and maintenance of the water supply, the Health Department, the town police, special police and any other locally designated body having police powers, and the Board of Selectmen.
- STATE OF WATER SUPPLY EMERGENCY
- A state of water supply emergency declared by the Massachusetts Department of Environmental Protection pursuant to Massachusetts General Laws, Chapter 21G, MGL C. 111, § 160, or by the Governor of the Commonwealth.
The following shall apply to all users of water supplies supplied by the town:
Following notification by the town of the existence of a state of water supply emergency, no person shall violate any provision, condition, requirement or restriction included in a plan approved by the Massachusetts Department of Environmental Protection which has as its purpose the abatement of a water supply emergency.
Notification of any provision, restriction, requirement or condition with which users of water supplied by the town are required to comply to abate a situation of water emergency shall be sufficient for purposes of this Article if it is published in a newspaper of general circulation within the town or by such other notice as is reasonably calculated to reach and inform all users of the town supply.
Any person or entity who violates this Article shall be liable to the town in the amount of $50 for the first violation and $100 for each subsequent violation which shall inure to the Town of Southwick for such uses as the town may direct. Each separate instance of noncompliance following the issuance of any warning or citation pursuant to this section shall constitute a separate violation. Fines shall be recoverable by indictment or a complaint before the District Court Department of the Trial Court. As an alternative to initiating such proceedings to enforce this Article, the town may elect to utilize the following noncriminal disposition procedure incorporated in MGL C. 40, § 21D, as amended.
The Board of Water Commissioners, the Board of Selectmen or the Police Department shall give to the offender a written notice to appear before the clerk of the District Court having jurisdiction thereof at any time during office hours, not later than 21 days after the date of such notice. Such notice shall be in triplicate and shall contain the name and address, if known, of the offender, the specific offense charged and the time and place for his required appearance. Such notice shall be signed by the Board of Water Commissioners, by a member of the Police Department or by the Board of Selectmen, as the case may be, and shall also be signed by the offender whenever practicable in acknowledgment that such notice has been received.
A copy of the notice shall, if possible, be delivered to the offender at the time and place of the violation. If it is not possible to deliver a copy of said notice to the offender at that time and place of violation, said copy shall be mailed or delivered to the offender's last known address, within 15 days after said violation. Such notice as so mailed shall be deemed a sufficient notice, and a certificate of the person so mailing such notice that it has been mailed in accordance with this subsection shall be prima facie evidence thereof.
At or before the completion of each tour of duty, or at the beginning of the first subsequent tour of duty, the enforcing person shall give to his commanding officer or department head, as the case may be, those copies of each notice of such a violation he has taken cognizance of during such tour which have not already been delivered or mailed by him as aforesaid. Said commanding officer or department head shall retain and safely preserve one copy and shall, at a time not later than the next court day after such delivery or mailing, deliver the other copy to the clerk of the Court before which the offender has been notified to appear.
Any person notified to appear before the clerk of a District Court as hereinbefore provided may so appear and confess the offense charged, either personally or through a duly authorized agent or by mailing to such clerk with the notice such specific sum of money not exceeding $100 as the town shall fix as penalty for violation of the ordinance, bylaw, rule or regulation. Such payment shall if mailed be made only by postal note, money order or check. The payment to the clerk of such sum shall operate as a final disposition of the case. An appearance under this subsection shall not be deemed to be a criminal proceeding. No person so notified to appear before the clerk of a District Court shall be required to report to any probation officer, and no record of the case shall be entered in any probation records.
If any person so notified to appear desires to contest the violation alleged in the notice to appear and also to avail himself of the procedure established pursuant to this section, he may, with 21 days after the date of the notice, request a hearing in writing. Such hearing shall be held before a District Court Judge, clerk or assistant clerk, as the Court shall direct, and if the Judge, clerk or assistant clerk shall, after hearing, find that the violation occurred and that it was committed by the person so notified to appear, the person so notified shall be permitted to dispose of the case by paying the specific sum of money fixed as a penalty as aforesaid, or such lesser amount as the Judge, clerk or assistant clerk shall order, which payment shall operate as a final disposition of the case. If the Judge, clerk or assistant clerk shall, after hearing, find that the violation alleged did not occur or was not committed by the person notified to appear, that finding shall operate as a final disposition of the case. Proceedings held pursuant to this subsection shall not be deemed to be criminal proceedings. No person disposing of a case by payment of such penalty shall be required to report to any probation officer as a result of such violation, nor shall any record of the case be entered in the probation records.
If any person so notified to appear before the clerk of a District Court fails to pay the fine provided hereunder within the time specified or, having appeared, does not confess the offense before the clerk or pay the sum of money fixed as a penalty after a hearing and finding as provided in the preceding subsection, the clerk shall notify the enforcing person who issued the original notice, who shall determine whether to apply for the issuance of a complaint for the violation of the appropriate ordinance, bylaw, rule or regulation.
As used in this section, the term "District Court" shall include, within limits of its jurisdiction, the Housing Courts of the County of Hampden.
The notice to appear provided for herein shall be printed in such form as the Chief Justice of the District Courts shall prescribe for the District Courts, and as the Chief Justice of the Housing Court shall prescribe for the Housing Court. Said notice may also include notice of violations pursuant to these bylaws and to MGL C. 85, § 11C; MGL C. 90, § 18A; MGL C. 270, § 16A; and MGL C.140, § 173A. Any fine imposed under the provisions of this section shall inure to the Town of Southwick for such use as the town may direct.
Agents of the enforcement authority may enter upon any property for the purpose of inspecting or investigating any violation of this Article or enforcing against the same.