[HISTORY: Adopted by the City Council of the City of Lowell as indicated in article histories. Amendments noted where applicable.]
[Adopted 7-24-1990 (Ch. 11, Art. IX of the 1988 Code)]
As used in this article, the following terms shall have the meanings indicated:
- INDELIBLE MARKER
- Any felt-tip marker, china marker or similar device that is not water soluble and which has a flat or angled writing surface 1/2 inch or greater.
- Any person under the age of 18 years.
- Any retail establishment.
No person shall sell or offer for sale, transfer or offer to transfer any spray paint container or indelible marker unless such spray paint container or indelible marker is held for sale or transfer in an enclosed device which is constructed to prevent removal of the merchandise except by authorized attendants or is stored in such a way as to prevent free access to the merchandise by the public.
No person shall sell or otherwise transfer any spray paint container or indelible marker to a minor, unless said minor is accompanied by a parent or legal guardian at the time of purchase or transfer.
No minor shall, at the time of purchase of items, knowingly furnish fraudulent evidence of maturity, including but not limited to a motor vehicle operator's license, a registration certificate issued under the Federal Selective Service Act, an identification card issued to a member of the Armed Forces, or any document issued by a federal, state, county or municipal government.
Any person who violates the provisions of this article shall be subject to a fine or penalty of not less than $25 for the first offense and $50 for each subsequent offense.
[Adopted 1-28-1997 (§§ 10-74 to 10-82 of the 1988 Code)]
It is hereby declared that graffiti upon public and private property is a nuisance which endangers the public health, safety, morals and welfare of the citizens of Lowell. Graffiti contributes to the creation of substandard, decadent and blighted neighborhoods; to the spread of crime and juvenile delinquency; to the reduction of property values; and to the arrest of economic growth within the City of Lowell. Left uncontrolled, graffiti encourages additional graffiti and constitutes an economic and social liability for the City of Lowell and its citizens.
As used in this article, the following terms shall have the meanings indicated:
- City of Lowell.[Added 7-23-2002]
- As used in this article, as well as other applicable sections of the Code, shall mean any letters, words, writings, numbers, symbols, logos, drawings, paintings, carvings, etchings, inscriptions or other markings not required or approved of by law, whether or not approved of by the owner, affixed to any real property or improvements thereto, either privately or publicly held, which destroys, damages, defaces, disfigures, alters, marks or mars the property in any manner or to any degree.
- Every person alone or severally with others who:
- A. Has legal title to any building or parcel of land, vacant or otherwise;
- B. Has care, charge or control of any building, or parcel of land, vacant or otherwise, in any capacity, including but not limited to agent, executor, executrix, administrator, administratrix, trustee or guardian of the estate of the holder of legal title;
- C. Is a mortgagee in possession of any such property; or
- D. Is an agent, trustee or other person appointed by the courts and vested with possession or control of any such property.
- REAL PROPERTY
- Land and whatever is attached to its surface, including but not limited to buildings, bridges, benches, poles, fences, trestles, playground equipment, fire hydrants, gravestones, tablets, trees, rocks, or any other object, natural or artificially made.
When graffiti exists on privately owned real property or on City-owned real property, upon notice thereof to the City and notwithstanding the provisions of §§ 164-7 through 164-13, the City shall, at the City's expense, remove the graffiti, so long as appropriated funds are available for such removal. As to privately owned real property, the removal shall be performed upon receipt of the owner's agreement and release to perform such work, a copy of which is hereto attached marked "A." Sections 164-7 through 164-13 shall not be applicable when the City performs removal pursuant to such agreement and release. It City funds are not available and appropriated for City removal of graffiti, and if the City Council so votes, §§ 164-7 through 167-13 shall be in full force and effect thus triggering the owner's responsibility for graffiti removal.
Editor's Note: The copy of the owner's agreement is on file at the City Clerk's office.
The City shall, subject to funding appropriation therefor, remove any graffiti determined to be in violation of any section of this article upon receiving a written agreement and release of liability from the owner of the premises in accordance with Subsection D of this section. The City shall prepare and distribute forms for this purpose.
If the City is for any reason unable to obtain the agreement and release from the owner of the premises, the City, acting through its Board of Health, shall cause a notice to be mailed to the owner of the premises where the graffiti exists notifying the owner of the City's determination that the premises contain graffiti in violation of this article in accordance with § 164-7. The notice shall also state that the owner may authorize the City to remove the graffiti by giving written agreement and release of liability in accordance with Subsection D of this section. Notice shall be provided in accordance with § 164-7.
As a condition precedent to allowing the City to perform the removal of the graffiti, the owner must sign an agreement and release on forms provided by the City releasing the City from liability for damage to public or private property in connection with the removal of graffiti. The owner, by execution of the agreement and release, gives advance consent to the City to remove graffiti from the real property in the future without the need for the City to obtain the owner's consent prior to each removal. Such prior authorization shall be contained in the agreement and release signed by the owner. The prior authorization may be revoked by the owner at any time by notifying the City in writing addressed to the Director of Neighborhood Services.
Whenever the City is authorized to remove graffiti and uses public funds for such purpose, the City shall not authorize, or undertake to provide for, painting or graffiti removal of any more extensive area than that where the graffiti is located, except in the following circumstances:
The City determines in a written notice to the owner that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community; and
The owner agrees to pay for the costs of repainting or repairing the more extensive area.
Where property defaced by graffiti is owned by a public entity other than the City, the City shall cause removal of the graffiti only after securing the consent of an authorized representative of the public entity that has jurisdiction over the premises.
Nothing in this article shall relieve any private person or entity, including utility companies, which occupies the public right-of-way pursuant to permit, franchise or license of the obligation to keep its facilities in repair, clean and free of graffiti.
Unless graffiti removal is authorized by appropriate agreement and release under § 164-6 or in the case where there is no City funding appropriated for graffiti removal, the prompt removal of graffiti shall be the responsibility of the owner as defined herein, whether public or private, following the discovery or notice thereof. When removal is the owner's responsibility §§ 164-7B through 164-13 shall be applicable.
In the case of privately owned property, the owner shall be required to remove or cause graffiti to be removed within 14 days following receipt of written notice from the Board of Health, or its authorized agent, served upon the owner or the owner's authorized agent. The notice shall be in writing and shall contain an order to remove the graffiti, hereinafter sometimes called an "order of notice." The notice shall also contain the following information: the location of the property; the location of the graffiti; a statement that the graffiti must be removed within 14 days after receipt of notice; a statement that if the graffiti is not removed within 14 days, the property will be subject to the removal, cost, and penalty provisions of §§ 164-11, 164-12 and 164-13; and notification of an owner's right to a hearing pursuant to § 164-8 or 164-9. Copies of all sections of the Code referenced in the notice shall be attached to said notice.
In the case of real property falling under the jurisdiction of the Lowell Historic Board, such notice will also state that the owner must comply with all rules and regulations of the Lowell Historic Board before engaging in the removal of graffiti.
Where the Board of Health finds that extraordinary and unnecessary hardships may result from strict compliance with the provisions of this article or where there are exceptional circumstances, the Board may grant a hardship exemption to the provisions of this article so that substantial justice may be done.
In order to issue a waiver, a majority of the Board shall make specific factual findings based on the criteria set forth in Subsection C demonstrating that strict application of this article would be inappropriate due to an exceptional or repeated economic hardship on the owner.
In granting hardship exemptions, the Board may require such conditions as will, in its judgment, substantially secure the objectives of the provisions which have been waived.
Procedure for requesting a hardship exemption.
An application for a certificate of economic hardship shall be made by the owner/applicant ("applicant") on a form prepared by the Lowell Board of Health within seven days after the order was served.
Upon receipt of such petition, the Board of Health shall set a time and place for such hearing and shall inform the applicant thereof in writing. The hearing shall be commenced not later than 30 days after the day on which the order was served. The Board of Health may postpone the date of the hearing for a reasonable time beyond such thirty-day period if, in the judgment of the Board of Health, the applicant has submitted a good and sufficient reason for such postponement.
Determination of economic hardship. At the hearing, the applicant shall be given an opportunity to be heard and to show why a hardship exemption should be granted. The burden of establishing an economic hardship exemption rests with the applicant seeking such an exemption. The Board of Health may solicit expert testimony or require that the applicant for a certificate of economic hardship make submissions concerning any or all of the following information before it makes a determination on the application:
Estimate of the graffiti removal cost for the subject building or any additional cost that would be incurred by the owner to comply with the standards of this article.
Estimated market value of the property in its current condition and estimated market value of the property after graffiti removal.
A report from an individual in the business of graffiti removal or with experience and expertise in this area as to the methods required for the removal of graffiti and an estimate of the costs involved.
Amount paid for the property, the date of purchase, and the party from whom purchased, including a description of the relationship, if any, between the owner of record or applicant and the person from whom the property was purchased, and any terms of financing between the seller and buyer.
If the property is income producing, the annual gross income from the property for the previous two years; itemized operating and maintenance expenses for the previous two years; and depreciation deduction and annual cash flow before and after debt service, if any, during the same period.
Remaining balance on any mortgage or other financing secured by the property and annual debt service, if any, during the same period.
All appraisals obtained within the previous two years by the owner or applicant in connection with the purchase, financing, or ownership of the property.
Any listing of the property for sale or rent, price asked, and others received, if any, within the previous two years.
Assessed value of the property according to the two most recent assessments.
Real estate taxes for the previous two years.
Form of ownership or operation of the property, whether sole proprietorship, for nonprofit or not-for-profit corporation, limited partnership, joint venture, trusts (of which the applicant is either a beneficiary or trustee), or other.
Disclosure of all real property holdings of the owner within the City of Lowell.
Evidence that the owner/applicant has taken reasonable steps to control the problem of graffiti on the subject real property through minimum maintenance, as evidenced by such considerations as:
The number of times the owner has taken steps to keep the property graffiti free.
A listing of all costs previously incurred by the owner in the removal of graffiti, complete with invoices and/or bills for such work.
The amount of graffiti on the real property at the time the application was filed.
The number of times the owner/applicant has reported graffiti incidents regarding the subject real property to the Lowell Police Department.
Evidence as to whether the applicant has constructively created his/her own economic hardship by negligently maintaining his real property, as evidenced by such considerations as the amount of graffiti on the real property at the time the application was filed; the number of notices the owner/applicant has received from the Board of Health regarding the removal of graffiti; and outstanding State Building Code, Sanitary Code or other code violations on the subject real property. In instances where the owner/applicant owns a number of properties within the City, the Board may consider the condition in which such other properties are maintained.
The condition of the real property at the time the owner/applicant purchased it, as well as a total of other rehabilitation costs the owner has incurred in an effort to improve the real property.
Any other information, including but not limited to the income tax bracket of the applicant or principal investors in the property, considered necessary by the Board of Health in determining the appropriateness of an economic hardship exemption.
The Board of Health may grant, grant with conditions, or deny an economic hardship exemption. The applicant shall be notified by registered mail of the Board of Health's decision and the reasons therefor, in writing, within 14 days from the close of the hearing.
The owner ("petitioner") to whom an order of notice has been served pursuant to this article may request a hearing before the Board of Health by filing with the Board of Health, within seven days after the day the order was served, a written petition requesting a hearing on the matter. Upon receipt of such petition, the Board of Health shall set a time and place for such hearing and shall inform the petitioner thereof in writing. The hearing shall be commenced not later than 30 days after the day on which the order was served. The Board of Health, upon application of the petitioner, may postpone the date of hearing for a reasonable time beyond such thirty-day period if, in the judgment of the Board of Health, the petitioner has submitted a good and sufficient reason for such postponement.
At the hearing, the petitioner shall be given an opportunity to be heard and to show why the order should be modified or withdrawn.
The Board may sustain, modify, or withdraw the order. The Board shall further inform the petitioner, in writing, of its decision and the reasons therefor within 14 days from the close of the hearing. The petitioner shall be so notified by registered mail.
Every notice, order, decision or other record prepared by the Board of Health in connection with the hearing shall be entered as a matter of public record in the office of the Clerk of the City and in the office of the Board of Health.
Any owner aggrieved by any final decision of the Board of Health with respect to an order of notice issued under the provisions of this article may appeal to a court of competent jurisdiction if, within three days upon receipt of the Board's decision, the owner commences a civil action in such court. Such right of appeal shall not be construed so as to hinder, delay or prevent the Board of Health, or an agent thereof, from acting and proceeding under § 164-11B, and provided further that this section shall not prevent the City from recovering all costs incurred, as provided in §§ 164-12 and 164-13, from the date of the service of the original order, unless otherwise ordered by a court.
If an owner, as defined herein, has not requested a hearing within seven days after receiving notice and fails or refuses to remove graffiti within the period provided in § 164-7, the City of Lowell may enter upon the property and remove the graffiti.
If an owner, as defined herein, has been ordered to remove graffiti following a hearing on the matter and fails or refuses to remove the graffiti within seven days following a hearing, the City may enter upon the property and remove the graffiti.
If the owner, or the owner's authorized agent, fails to comply with an order issued pursuant to § 164-7 and the City of Lowell removes or causes such graffiti to be removed, the removal costs, pursuant to MGL c. 111, § 126 shall constitute a debt due the City, upon the completion of the removal and the rendering of an account therefor to the owner, as defined herein, and shall be recoverable from such owner in an action of contract.
Furthermore, pursuant to MGL c. 111, § 125, any such debt, together with interest thereon at the rate of 6% from the date such debt becomes due, shall constitute a lien on land upon which the graffiti was located if a statement of claim, signed by the Commissioner of Inspectional Services and the City Manager, setting forth the amount claimed without interest is filed within 90 days after the debt becomes due with the Register of Deeds for Middlesex County. Such lien shall take effect upon the filing of the statement aforesaid and shall continue for two years from the first day of October next following the date of such filing. If the debt for which such a lien is in effect remains unpaid when the Board of Assessors is preparing a real estate tax list, the Commissioner of Inspectional Services or the City Manager, or the City Tax Collector, shall certify such debt to the Board of Assessors, which shall forthwith add such debt to the tax on the property to which it relates and commit it with its warrant to the Collector as part of such tax. If the property to which such debt relates is tax exempt, such debt shall be subject to the provisions of law relative to interest on the taxes of which they become, or, if the property were not tax exempt would become, a part, and the Collector of Taxes shall have the same powers and be subject to the same duties with respect to such debts as in the case of annual taxes upon real estate, and the provisions of law relative to the collection of such annual taxes, the sale or taking of land for the nonpayment thereof, and the redemption of land so sold or taken shall, except as otherwise provided, apply to such claims. A lien under this section may be discharged by filing with the Register of Deeds for Middlesex County a certificate from the Collector of the City that the debt constituting the lien, together with any interest and costs thereon, has been paid or legally abated. All costs of recording or discharging a lien under this article shall be borne by the owner of the property.
Any person who violates any provision of this article shall be subject to a fine of $50 for each offense and may be penalized by a noncriminal disposition as provided for under §§ 1-5 and 1-6 of the Code and MGL c. 40, § 21D. Each day's failure to comply with an order shall constitute a separate violation.
The timely filing of an appeal with the Board of Health pursuant to the provisions of § 164-9 shall "stop the clock" on the calculation of weekly penalties, as provided in this section, from the time this appeal is filed until such time as the Board of Health renders its decision.
Nothing herein shall prevent the City of Lowell from enforcing other applicable sections of the Code, namely § 222-10, Painting, writing or marking on real property, and Article I, Sale of Spray Paint Containers and Indelible Markers, of this chapter, or applicable sections of Massachusetts General Laws, including but not limited to MGL c. 266, § 126.