Published in the October 19, 2017 edition
By MAUREEN DOHERTY
NORTH READING — Snow. It’s the four-letter word that no one wants to discuss in October.
However, as Town Administrator Michael Gilleberto reminded the Selectmen Monday night, it’s inevitable. Therefore, now is the time to broach a thorny issue: How to best implement the amended snow removal bylaw passed by the voters at June Town Meeting and approved, with a caveat, by the state Attorney General’s office last month.
Gilleberto explained that the AG’s office opined that the town cannot assess the cost of snow removal as a punishment for the non-payment of fines issued to property owners who fail to remove the snow from the sidewalks in front of their non-residential properties on Main Street (Rte. 28).
The snow removal bylaw was originally passed by the town’s voters back in 2002 as a means to force commercial property owners in the town’s business corridor to remove snow from the constructed sidewalks along their frontage in the interest of public safety.
However, as Gilleberto pointed out, enforcement of the bylaw has been challenging, at best, over the years.
For instance, sending the town’s police officers knocking on doors issuing warnings and fines to tenants and property owners for not removing snow within 24 hours of a storm — only to have the fines dismissed when court dates arrived in the spring, after the snow had melted — has been deemed not to be the best use of the town’s resources, he said. It also does not help promote the goal of the bylaw, which is to improve public safety and access to these businesses, he added.
Following the tough winter of 2014-15, Town Meeting amended the bylaw to allow for the recovery of costs associated with snow removal done by the town when commercial property owners/tenants fail to do so. But he said, with the “continued difficulty achieving compliance” with the bylaw, at June Town Meeting voters approved a change to the fine schedule in the bylaw, from a warning for a first offense, $50 for a second offense and $100 for a third offense to a flat rate of $300 per offense.
Proposed enforcement plan
With the likelihood remaining high that fines will be dismissed in court and based on the premise that Town Meeting still desires non-residential property owners or tenants to remove snow from sidewalks, and taking into consideration the AG’s opinion, Gilleberto has recommended the following enforcement plan for the 2017-18 winter season:
At locations where snow has not been removed by owner or tenant, the DPW removes the snow after 24 hours and assesses the cost of removal to the tenant or occupant. Subsequently, the DPW recovers the cost via a lien on the property if the assessment is not paid. Fines would not be issued.
He added that one bill would be sent to the tenant or occupant per season (Oct 15 to May 15) and a duplicate bill would be sent to the property owner of record.
Under this scenario, after the bills are finalized per property by the DPW, the assessments would then be approved by the Board of Selectmen and certified to the town’s Assessors. Notice of the amount of the assessment issued would be sent to the property owners who would be given 30 days to pay it.
Gilleberto further explained that if the bill is not paid, the town would record a notice of betterment assessment, with reference to each property to be assessed, which would then be committed by the Assessors to the Collector for collection. If this assessment is not timely paid, the Assessors would add the unpaid amount to the next annual tax bill for that property and it would be collected as a tax.
The town may recover the unpaid cost through a tax taking within two years from the October 1 of the year it is placed on the annual tax bill, and subsequent foreclosure of that taking, he stated.
“I am not advocating this as the best method but this is the only way to assure if we do the service we recover the cost,” Gilleberto told the board.
Assessing cost tricky
Determining the costs to the town for doing this snow removal has proved tricky.
Gilleberto and DPW Director Andrew Lafferty sharpened their pencils and came up with a pricing plan example that could help the town recoup its costs for removing and hauling away the snow and ice. However, it is just as difficult to predict how much the snow removal cost would be as it is to predict how much snow will actually fall once the meteorologists warn us to shelter in place and to be sure to stock up on milk, bread and flashlight batteries.
One cost breakdown for a very large storm of 20-plus inches raised the eyebrows of some Selectmen totaling an estimated $151,543, or $1,515 assessed for the average Rte. 28 property owner with 179-feet of frontage.
Selectman Andrew Schultz asked how the town could present such a high bill to a property owner “with a straight face.”
Selectman Steve O’Leary added that this cost was similar to what the town pays to remove the snow from the entire town after a large storm.
Gilleberto and Lafferty explained that their methodology included factors such as the likelihood of needing to pay DPW crew members either an overtime or nighttime pay for doing this work outside of their normal work schedules; the need to also pay for one or two detail officers to ensure the safety of all involved; the cost of supervisors to document the removal being done and oversee the work; the cost to haul the snow off-site since there would be no place to store it on-site; the federally-allowed equipment depreciation rate and cost of materials; the cost of renting special equipment; the fact it could take up to four or five nights to complete the job, depending on the number of properties involved; and recouping the considerable administrative costs associated with billing and implementing the program.
Additionally, the cost is “variable and not proportional” Gilleberto said, explaining that this example does not mean a 10-inch storm would cost that same property owner $757 because each situation and storm is unique.
They explained that the town cannot recover costs over what would be an “assessment” for the betterment of the property and therefore had to base the estimate on the worst-case scenario.
Business community has been silent
Selectmen Chairman Mike Prisco was not overly concerned with the cost to the commercial property owners who ignored their obligation to remove this snow.
“This issue has been ongoing almost since the day I arrived here. We have had this discussion in this room many times. It’s been in front of Town Meeting many times and the business community, we have not heard from them. We’ve told them this was coming. Mr. Schultz has gone out of his way to go to the Chamber and share with them all of this information and there hasn’t been any issue or concern on their part about any of this,” Prisco said.
“So I think it is very easy to look anybody in the eye and say, ‘We’ve given you ample opportunity to address this issue. We told you this was coming. You didn’t come to these meetings. We posted it. You didn’t come to Town Meeting to vote against it or talk against it.’ No one should complain,” the chairman added.
O’Leary also noted the danger that pedestrians face when “people are being forced to walk into Route 28” when the sidewalks are left unplowed.
Selectman Bob Mauceri asked whether the DPW would also apply either sand or ice melt on the sidewalks it plowed and if the town would be taking on any liability from slip and fall injuries. Gilleberto said based on the advice he has received from Town Counsel the town would not incur any liability for either taking action by removing the snow or by not taking any action to remove the snow when the commercial property owner did not remove it.
Lafferty added that the DPW does not presently sand or treat any of the sidewalks it plows in town and therefore would not do so on these sidewalks. Most of the sidewalks the town plows are along walking routes to schools, which would remain a priority for the DPW. Any of the work done by the DPW along the commercial properties would take place after all other public ways and sidewalks were done after any storm.
Next steps
Gilleberto said within the next two to three weeks a meeting should be held with the executive director of the Chamber of Commerce to advise the organization of the town’s enforcement plan. He would like to see the Selectmen vote on an enforcement plan by Nov. 6 to ensure an advisories can be mailed out to property owners in a timely manner prior to any early-season snow storms.
