Author: Municipal Finance Law Bureau
This month’s Ask DLS features frequently asked questions concerning G.L. c. 40U, §§ 1-17, which allows for the assessment of certain municipal bylaw and ordinance fines and the use of the tax title and real estate tax commitment process as collection methods for any unpaid fines. Please let us know if you have other areas of interest or send a question to cityandtown@dor.state.ma.us. We would like to hear from you.
Are municipalities allowed to place liens on property for unpaid fines relative to certain bylaw and ordinance violations?
Yes. G.L. c. 40U, §§ 1-17 is a local option statute passed in 2010 that, if accepted, allows municipalities to enforce fines imposed for violations of municipal housing, sanitary or snow and ice removal requirements. It was loosely based upon special legislation approved for the City of Somerville. After acceptance of the statute, a city or town must adopt procedures for the payment of fines and appoint a municipal hearing officer to hear appeals of any fines imposed. While municipalities may also utilize the non-criminal disposition procedures under G.L. c. 40, § 21D for the fines, G.L. c. 40U is unique in that it allows for collection of unpaid fines through the placement of liens on property and commitment of the real estate tax. G.L. c. 40U is the only state statute that allows for collection of municipal fines through the real estate tax commitment process, though a few communities have obtained special legislation to do so.
How may a city or town vote to accept G.L. c. 40U?
Acceptance is by vote of the community’s legislative body, subject to charter. G.L. c. 4, § 4.
Which types of fines may be imposed pursuant to G.L. c. 40U?
While municipalities may adopt various local procedures, G.L. c. 40U, § 1 allows municipalities to enforce fines for “a violation of a rule, regulation, order, ordinance or by-law related to the use of property for short-term rental use or regulating a housing, sanitary or municipal snow and ice removal requirement.” G.L. c. 40U, § 5 allows municipalities to adopt ordinances and bylaws providing for the removal of snow and ice from sidewalks within portions of the municipality as they consider expedient by the owner of land abutting such sidewalks. Such ordinances and bylaws shall affix penalties for violations in an amount not to exceed $200 per violation. The $200 fine cap differs from the fine cap for municipal non-criminal disposition violations under G.L. c. 40, § 21D, which provides for maximum municipal fines of $300 per violation.
Housing and sanitary code violations outlined in G.L. c. 40U presumably could include those covered under G.L. c. 111, § 125 (nuisance removal); G.L. c. 111, § 127B (unsanitary building remediation); G.L. c. 139, § 3A (remediation of unsafe structures); G.L. c. 143, § 9 (unsafe building demolition); and G.L. c. 148, § 5 (fire hazard remediation).
What are the procedures that municipalities must adopt to implement G.L. c. 40U?
A municipality that adopts G.L. c. 40U must adopt procedures for the payment of fines, may utilize the non-criminal disposition procedure for collection of fine violations, as provided in G.L. c. 40, § 21D, and shall determine which violations shall be included, the fine amounts and enforcement personnel for each violation. In order to enforce snow and ice removal violations through G.L. c. 40U, municipalities must pass an ordinance or bylaws outlining the time and manner of removal and penalties, not to exceed $200 for each violation. For all violations, the statute sets out certain standards for violation notices, fine amounts and appeals.
What is the appeal mechanism for those issued G.L. c. 40U violation fines who wish to contest them?
G.L. c. 40U, § 6 provides that municipalities utilizing the G.L. c. 40U procedure shall provide a localized appeal process for those aggrieved by violation notices through the appointment of a municipal hearing officer. Such hearing officer may be the same municipal hearing officer required by G.L. c. 148A designated to hear local appeals of violations of the State Building Code, 780 CMR, or the State Fire Code, 527 CMR. Pursuant to G.L. c. 148A, § 5, the stipend for the municipal hearing officer shall be not less than $2,500 annually. Persons further contesting determinations of the municipal hearing officer may appeal, within ten days of receipt of the municipal hearing officer’s determination, to the district court, housing court or other court of competent jurisdiction, pursuant to G.L. c. 40, § 21D. By contrast, if violations are issued pursuant to G.L. c. 40, § 21D, appeals of violations are made directly to the district court, housing court or other court of competent jurisdiction.
What happens if a person receiving a G.L. c. 40U violation fails to timely request an appeal, or fails to pay the violation within the prescribed time?
If a fine remains unpaid for 21 days and no hearing has been requested, after the municipality had sent a notice letter to the property owner, with a processing fee of not more than $10, and said owner has not paid the fine within 30 days after receipt of the letter, the fine and additional penalties and interest may be attached, and they may become an additional assessment on the property owner’s tax bill as discussed below. If it is liened and remains unpaid, the property can be taken into tax title. All fines, interest, costs, and penalties collected under G.L. c. 40U belong to the general fund, pursuant to G.L. c. 44, § 53. A municipality does have the option of making an unpaid fine, and any interest and costs that accrue, a lien on the property. Liens for G.L. c. 40U fines arise upon recording a lien statement with the county registry of deeds for each parcel. All recording costs are the responsibility of the property owner. G.L. c. 40U, §12.
Pursuant to G.L. c. 40U, § 12, a municipality’s decision on whether to place a lien on the property for G.L. c. 40U violations may involve the total number of fines issued to a property owner, and the amount of the violations, including costs and interest, owed.
Is there a specific form for commitment of unpaid G.L. c. 40U violation fines to real estate tax bills, in accordance with G.L. c. 40U, § 12?
The Commissioner of Revenue has not approved a specific form to do so, but DLS has advised that municipalities may utilize the form used for municipal charges liens, pursuant to G.L. c. 40, § 58. The liens would be created by a recorded statement with the county registry of deeds and discharged by a recorded certificate from the tax collector.
May revenues derived from G.L. c. 40U fines be dedicated to a special revenue account or to a stabilization fund?
It depends. Pursuant to G.L. c. 44, § 53, payments for G.L. c. 40U fines are collected in the same manner as real estate tax collections, with payments credited to the general fund. Such revenues may not be accounted for in special revenue accounts, absent an appropriation. With respect to dedication of receipts to a stabilization fund, pursuant to G.L. c. 40, §5B, a city or town that has accepted the fourth paragraph of G.L. c. 40, §5B may dedicate G.L. c. 40U revenues that have not otherwise been added to the property owner’s tax bill to a stabilization fund, as the revenues are not reserved by law to a particular purpose, if all other procedural requirements are met.
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| Date published: | March 2, 2023 |
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