[HISTORY: Adopted by the City Council of the City of Fitchburg
as indicated in article histories. Amendments noted where applicable.]
[Adopted 6-4-2013 by Ord. No. 160-2013[1]]
[1]
Editor's Note: This ordinance also repealed former Ch.
138, Property Maintenance, Art. I, Nuisances Affecting Real Property,
adopted 4-6-2010 by Ord. No. 038-10.
A.
The purpose and intent of this article is to eliminate nuisances
affecting buildings and real property in the City. Nuisances, such
as dilapidated buildings, buildings or real estate covered with graffiti,
buildings open to the weather or vagrants, real estate with overgrowth
of vegetation, debris, trash, and stagnant pools of water, and vacant
or abandoned buildings, cause and contribute to blight within neighborhoods
and commercial areas of the City and adversely affect the property
values for adjacent and surrounding property. Such nuisances on property
also impair the public health and safety. This article is intended
to supplement and augment existing authority found in state laws and
local ordinances.
B.
These nuisances on public or private property are blighting factors
which depreciate the value of the property, target it for vandalism,
depreciate the value of the adjacent and surrounding properties, and,
in so doing, have a negative impact upon the entire community.
C.
These nuisances encourage other acts of malicious vandalism and may
be ancillary to and/or breed other forms of criminal activity. The
Council finds that dilapidated buildings, graffiti, buildings open
to the weather or vagrants, real estate with an overgrowth of vegetation,
strewn with debris or trash, and having stagnant pools of water, and
vacant or abandoned buildings are public nuisances and destructive
of property values, affecting not only the property owners but the
entire community. Unless the City acts to remove these nuisances from
public and private property, the real property will deteriorate further.
Other properties then become affected, and entire neighborhoods may
deteriorate and become less desirable places in which to be, all to
the detriment of the City.
D.
The City enacts this article using its Home Rule authority and its
police powers under MGL c. 40, § 21, to eliminate and prevent
the spread of public nuisances.
E.
The Council does not intend for this article to conflict with any
existing state laws or the Constitution of either the United States
or the Commonwealth of Massachusetts.
As used in this article, the following terms shall have the
meanings indicated:
Any unauthorized inscription, word, figure, painting or other
defacement that is written, marked, etched, scratched, sprayed, drawn,
painted, or engraved on or otherwise affixed to or on any surface
of public or private property to the extent that the graffiti was
not authorized in advance by the owner or occupant of the property
or, despite advance authorization, is otherwise a public nuisance.
A person lawfully occupying real property.
Every person who alone or severally with others:
Has legal title to any building or parcel of land, vacant or
otherwise; or
Has care, charge or control of any building or parcel of land,
vacant or otherwise, in any capacity, including but not limited to
as agent, executor, executrix, administrator, administratrix, personal
representative, trustee, or guardian of the estate of the holder of
legal title; or
Is a mortgagee in possession or otherwise in control of any
property; or
Is an agent, trustee or other person appointed by the courts
and vested with possession or control of any property; or
Is an officer or trustee of the association of unit owners of
a condominium.
Each person within this definition as owner is bound to comply
with the provisions of this article as if he or she were the owner
in fee.
[Amended 6-3-2014 by Ord. No. 100-2014]
Every individual, partnership, corporation, trust or other
entity.
A problem property meets the following criteria: The Police
Department has been called to the property not fewer than four times
within the preceding twelve-month period for any incident involving
any criminal offense, including but not limited to disturbing the
peace, trespassing, underage drinking or assault and battery; or the
property has been reported to the Police Department, Board of Health,
or Building Inspectional Services Department for not fewer than four
sustained complaints for noise within the preceding twelve-month period;
or the Board of Health or Building Inspectional Services Department
have received not fewer than four sustained and upheld complaints
within the preceding twelve-month period for noxious, noisome or unsanitary
conditions; the Fire Department has received four incidences of false
alarms within the preceding twelve-month period; an owner receiving
four notices concerning violations of public nuisances within the
preceding twelve-month period; or any combination of any above four
incidences within the preceding twelve-month period.
The Mayor shall name a designee to make the determination whether
a property is identified as a "problem property" pursuant to the above
definition. The designee shall take into consideration the nature
of the complaints, the number of dwelling units at the property, and
the nature of the use of said property in the decision to designate
a property as a "problem property."
An unreasonable interference with a right common to the general
public, such as a condition dangerous to health, offensive to community
moral standards, or that otherwise threatens the general welfare of
a neighborhood or the City in general through documented pervasive
criminal activity, code violations, or other causes precipitating
the deployment of any City resource.
The Mayor shall appoint individuals to review issues concerning
designated problem properties.
A.
All property in the City of Fitchburg shall be maintained in accordance
with the following property standards:
(1)
General. All property, whether occupied or vacant, shall be maintained
in good repair and in a safe and sanitary condition. The owner shall
cut and maintain vegetation to prevent any rodent harborage or an
unkempt appearance. It shall be so maintained as to not cause or contribute
to the creation of a hazardous condition or blighted area or as to
affect adversely the public health and safety or property value of
adjacent or surrounding property, the public at large or public safety
officials entering the property in the course of their public duties.
(2)
Overgrowth. All property shall be maintained free of unkempt vegetation
and any plant materials or anything else that is or may reasonably
encourage, foster or enhance the possibility of infestation with rodents,
vermin, other animals or insects such as ticks or that may attract
or be used by feral dogs or cats; pools of stagnant water; or anything
that creates or contributes to the creation of a fire safety hazard.
(3)
Structures. All structures, including any buildings, fences, storage
sheds, or any element thereof shall be maintained in a structurally
sound condition, in good repair and free of broken windows and interior
and exterior fire hazards. They shall be maintained in a condition
so as to not cause or contribute to a risk of danger to persons on
the property or passersby. Every owner shall maintain every building
in a manner so that it is not open to the weather or, if vacant, so
secured as to keep intruders, vagrants, and children from entering
into the building, using it or occupying it. All property shall be
maintained free of extensive peeling, flaking, or chipped paint. All
property with siding shall be maintained in a weather-resistant and
watertight condition.
(4)
Conditions of land. All real estate shall be maintained free of unkempt
vegetation; anything that is, or may reasonably become, infested with
rodents, vermin, or other animals; pools of stagnant water; fire safety
hazards; or other conditions which in the opinion of the Board of
Health or the Public Health Director create a public nuisance. All
real estate, whether occupied or not, shall be kept free of litter,
refuse, garbage, and accumulations of debris, trash or junk of any
kind.
(5)
Pools of stagnant water. All property shall be maintained to prevent
the formation of pools of water and shall be free of standing water
or stagnant water which adversely affects the public health by attracting
and harboring mosquitoes, ticks and other insects. No owner shall
allow such pools of water to accumulate and shall drain them if they
form.
(6)
Graffiti. Graffiti is a nuisance. An owner shall remove graffiti
from any building or structure within his or her possession or control.
It is unlawful for any person to apply graffiti to any natural or
man-made surface on any publicly owned property or, without the permission
of the owner or authorized occupant, on any privately owned property.
[Amended 6-3-2014 by Ord. No. 100-2014]
B.
Removal of nuisance. It is unlawful for the owner of any property in the City to violate the property standards contained in Subsection A. Any property with one or more violations is hereby declared to be a public nuisance. The Board of Health, the Director of Public Health, the Police Chief, the Chief of the Fire Department, the Building Commissioner, the Commissioner of the Department of Public Works, and the Director of Housing, or their designees, are hereby designated as the enforcing authorities of this article. If any enforcing authority determines that a violation of the standards described in Subsection A exists, he or she shall order the owner to remove or abate the nuisance within 10 days after service of notice of the violation. If the violation is such that the public health and safety will be jeopardized by that delay, the enforcing person may order the abatement or removal of the nuisance in a shorter time as public health and safety may in his or her judgment require. The order shall be in writing and may be served personally on the owner, occupant or his authorized agent by any person authorized by the enforcing authority.
C.
The notice shall contain the following information:
(1)
The street address and description of the property sufficient for
identification of the property.
(2)
A statement that the property has been found to be in violation of
this article and constitutes a public nuisance.
(3)
A description of the facts on which the violations were found and
the public nuisance declared.
(4)
A statement that:
(a)
The owner must remove the nuisance or abate it within 10 days
from service of the notice, or within a shorter time if the public
health or safety might be jeopardized by delay; and
(b)
If the owner fails to remove or abate the nuisance within the
time frame specified, the City may remove the nuisance, assess the
costs thereof to the owner and impose the penalties described in this
article.
A.
If the owner fails to remove a nuisance within the specified time
frame, the City may abate the nuisance or remove the nuisance. The
cost of the removal or abatement will be billed to the owner, and
the owner shall reimburse the City for the expense incurred for such
removal. If the owner of a privately owned, owner-occupied dwelling
is the victim of a person writing graffiti on his building, the Commissioner
of Public Works may remove the graffiti at the cost of the City. The
sum so expended may be recovered by the City as provided in MGL c.
111, §§ 122 to 125, in an action of contract by the
City against the owner or by imposition of a lien against the property
as permitted under MGL c. 139, § 3A. The fine for any violation
of this article is $300 per violation, and each day on which a violation
exists shall be deemed to be a separate offense.
B.
This section may also be enforced by civil process or by noncriminal
disposition as provided in MGL 40, § 21D. If enforced civilly,
each day on which a violation exists shall be deemed to be a separate
offense, and the violator shall be subject to the following fines:
C.
In addition to the penalties set forth above, the enforcing authority
may seek an injunction from an appropriate court to restrain any violation
of this section.
D.
In lieu of any penalty specified in this section, any person who
has violated the section of this article prohibiting graffiti shall,
with the approval and consent of the enforcing authority, make restitution
to the victim for damages or loss caused directly or indirectly by
the violator's offense in the amount or manner determined necessary
to clean up the graffiti.
E.
In lieu of, or as part of, the penalties specified in this section,
the violator may, at the discretion of the enforcing authority, be
required to perform community service based on the following minimum
requirements:
(1)
The violator shall perform hours of community service for up to 10
days.
(2)
When the violator is a minor, the enforcing authority must consult
with and obtain the written consent of the parent or lawful guardian
and coordinate with appropriate school personnel when considering
community service as an alternative to criminal prosecution or the
imposition of civil fines.
A.
Designation of problem property. Problem properties are those properties which have been identified by the Mayor's designee under the definition in § 138-2.
B.
Enforcement.
(1)
After declaring the problem property a public nuisance, the members
of the review board shall, by affixing a notice of the violation to
the front door, issue a notice to any or all of the tenants and the
owner of the property immediately for perpetuating the public nuisance(s)
at the time of any incident requiring the deployment of any City resources
or personnel following the property being placed on the problem properties
list.
(2)
The owner shall be noticed to appear before the review board, and
that board shall present the list of violations and conditions to
correct in order for the property to be removed from the problem properties
list. Any owner of a property determined by the review board to be
a problem property shall file a management plan with the review board,
within 30 days of having a hearing before the review board, that outlines
and verifies the owner's strategy and steps devised to bring
the property up to code.
C.
Verifiable and certified inspection. In order for a property to be
removed from the problem properties list by the review board, an owner
must present to the board a sworn statement following an inspection
certifying that the property is in compliance with the minimum standards
of human habitability for a residential dwelling as set forth in the
Massachusetts State Sanitary Code, as it may be adopted or amended
from time to time. The inspection shall be performed and the sworn
statement shall be signed by an authorized inspector, which shall
be defined as the Director of Public Health or his or her designee
and/or the Building Commissioner or his or her designee. If the origination
of the complaints that led to the designation of the property as a
problem property were from the Police or Fire Department, then a sworn
statement from that Department, attesting to corrective actions taken
by the owner to address the complaints, shall be required in addition
to the sworn statement by an inspector.
[Amended 6-3-2014 by Ord. No. 100-2014]
D.
Receivership. Should the owner of a property placed on the problem
properties list not respond to the review board notification within
60 days, the review board may authorize the appropriate City Department
to petition the Housing Court for the appointment of a receiver to
rehabilitate that property.
A.
All invoices for the payment of municipal charges and bills, fines
or violations are due under any provision of this article or arising
in connection with enforcing this article within 30 days after they
are mailed, unless a different due date is otherwise provided by law
or ordinance. Any invoice remaining unpaid after its due date will
accrue interest from the due date at the rate of interest charged
on tax bills under the provisions of MGL c. 59, § 57, as
the same may from time to time be amended.
B.
The fees and charges assessed under this article, together with interest
thereon and costs relative thereto, shall be a lien upon the real
estate as described in MGL c. 40, § 58. The lien shall take
effect upon the recording of a list of unpaid municipal charges and
fees, by parcel of land and by the name of the person assessed for
the charge or fee in the registry of deeds, and a charge or fee which
is secured by a municipal charges lien remains unpaid. When the assessors
are preparing a real estate tax list and warrant to be committed under
MGL c. 59, § 53, the enforcing authority in charge of collecting
the charge or fee, or the Collector of Taxes, shall certify the charge
or fee to the assessors, who shall forthwith add the charge or fee
to the tax on the property to which it relates and commit it with
their warrant to the Collector of Taxes as part of such tax.
C.
If the property to which such charge or fee relates is tax exempt,
the charge or fee shall be committed as the tax. A lien under this
section may be discharged by filing a certificate from the Tax Collector
that all municipal charges or fees constituting the lien, together
with any interest and costs thereon, have been paid or legally abated.
All costs of recording or discharging a lien under this section shall
be borne by the owner of the property.
D.
Upon the neglect or violation of any duty imposed by this article,
that duty may be performed by the enforcing authority at the expense
of the person charged with the duty. The City may recover its expenses,
not exceeding the penalty, in a legal action of contract.
A.
Each section, each provision or requirement of any section of this
article shall be considered separable. If any section, subsection,
sentence, clause, phrase or portion of this article is for any reason
held invalid or unconstitutional by any court of competent jurisdiction,
such portion shall be deemed a separate, distinct and independent
provision, and such holding shall not affect the validity of the remaining
portions hereof.
B.
Nothing in this article is intended to, nor shall it be construed
to, diminish or limit the powers, authorities and duties of the Board
of Health or its designees and any other municipal board, department
or commission.
C.
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 this article.
