Town of Southborough, MA
Worcester County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Meeting of the Town of Southborough 4-17-2008 ATM by Art. 51. Amendments noted where applicable.]
GENERAL REFERENCES
Loitering — See Ch. 117.
Peace and good order — See Ch. 131.
A. 
It is the intent of this bylaw to protect the Town's compelling interest to promote and protect the public health, safety and welfare of the inhabitants of the Town of Southborough by creating areas around locales where children, the elderly and mentally retarded regularly congregate and wherein certain sex offenders are prohibited from loitering and establishing temporary or permanent residence.
B. 
It is determined that this bylaw is the most narrowly crafted means of restricting to the fullest extent possible the opportunity for registered sex offenders to approach or interact with children, the elderly and the mentally retarded where such persons routinely and naturally congregate and that the protections of the health and safety of our children, elderly, and mentally retarded is a compelling public and governmental interest.
C. 
This bylaw is intended to create a civil nonpunitive regulatory scheme in order to protect children, the elderly, and the mentally retarded to the greatest extent possible under the circumstances of public welfare protections and not as a punitive measure of any kind.
D. 
Registered sex offenders pose a clear threat to the children, the elderly, and the mentally retarded as vulnerable groups residing in or visiting the Town, because registered sex offenders are more likely than any other type of offender to re-offend for another sexual offense, the Town desires to impose safety precautions in furthering the public purpose of protecting the children, elderly and mentally retarded. The purpose of this bylaw is to mitigate the potential risk of harm to children, the elderly and the mentally retarded of the Southborough Community by deterring the ability for registered sex offenders to be in contact with unsuspecting children, the elderly, and mentally retarded in locations that are primary utilized by such children, the elderly or mentally retarded, that is the grounds of public and private schools for children, centers or facilities that provide day care or children's services, parks, other recreational facilities, elderly housing facilities or facilities for the mentally retarded. The Town desires to add location restrictions to such offenders where state law is silent.
The following words, terms, and phrases when utilized in this chapter shall have the meanings ascribed to them in this section, except where the context clearly described a different meaning:
1. 
"Registered Sex Offender" for the purposes of this chapter shall mean: (a) any person who is designated as a sexually violent predator pursuant to Chapter 6, § 178C, of the Massachusetts General Laws and who is required to register as a sex offender pursuant to the guidelines of the Sex Offender Registry Board; (b) any person who is required to register as a sex offender pursuant to Chapter 6, § 178C, of the Massachusetts General Laws and who is finally classified as a Level 3 offender pursuant to the guidelines of the Sex Offender Registry; and (c) any person who is required to register as a sex offender pursuant to Chapter 6, § 178C, of the Massachusetts General Laws, who is finally classified as a Level 2 offender pursuant to the guidelines of the Sex Offender Registry and who has committed a sex offense against a child, an elder, and/or a mentally retarded person.
2. 
"Sex Offender" and "Sex offense" shall have the same meaning as provided for in MGL c. 6, § 178C.
3. 
"Child" or "Children" shall mean persons under 18 years of age.
4. 
"Elder" or "Elderly" shall mean persons over 60 years of age.
5. 
"Mentally Retarded person" shall mean, pursuant to MGL c. 123B, § 1, a person who, as a result of inadequately developed or impaired intelligence, as determined by clinical authorities as described in the regulations of the Department of Mental Retardation, is substantially limited in his or her ability to learn or adapt, as judged by established standards available for the evaluation of a person's ability to function in the community.
6. 
"Park" -- Any public land designated for active or passive recreational or athletic use by the Town of Southborough, the Commonwealth of Massachusetts or other governmental subdivision, and located within the Town of Southborough.
7. 
"School" -- Any public or private educational facility that provides services to children in grades Kindergarten through 12.
8. 
"School Bus Stop" -- Any area designated by the public school district or by a private or parochial school within the Town of Southborough as a school bus stop.
9. 
"Recreational facility" includes, but is not limited to, a playground, a forest preserve, conservation area, jogging trail or running track, hiking trail, beach, wading pool, soccer field, baseball field, football field, basketball court or hockey rink, dance or gymnastic studio, or whether publicly or privately owned, to which the public has a right of access as an invitee and which is located within the Town of Southborough.
10. 
"Day-Care Center" -- Any establishment, whether public or private which provides care for children and is registered with and licensed pursuant to the applicable laws of the Commonwealth of Massachusetts by the Office of Child Care Services.
11. 
"Elderly housing facility" -- A building or buildings on the same lot containing four or more dwelling units restricted to occupancy by households having one or more members 55 years of age or older.
12. 
"Permanent Residence" -- A place where a person lives, abides, lodges, or resides for 14 or more consecutive days.
13. 
"Temporary Residence" -- A place where a person lives, abides, lodges, or resides for a period of less than 14 consecutive days or 14 days in the aggregate during any calendar year, which is not the person's permanent address or place where the person routinely lives, abides, lodges, or resides and which is not the person's permanent residence; but "temporary residence" shall not include residence at a hospital or other health care or medical facility for less than 14 consecutive days or 14 days in the aggregate during any calendar year.
14. 
"Establishing a Residence" -- To set up or bring into being a dwelling place or an abode where a person sleeps, which may include more than one location, and may be mobile or transitory, or by means of purchasing real property or entering into a lease or rental agreement for real property (including a renewal or extension of a prior agreement whether through written execution or automatic renewal).
A. 
Prohibition. A registered sex offender is prohibited from establishing a permanent residence or temporary residence within 1,000 feet of any school, day-care center, park, other recreational facility, or elderly housing facility.
B. 
It is unlawful for any sex offender who is finally classified as a Level 2 or 3 offender pursuant to the guidelines of the Sex Offender Registry Board to establish a permanent residence within 1,000 feet of any school, day-care center, park, or elderly housing facility.
C. 
Evidentiary matters measurements. For purposes of determining the minimum distance separation under this section, the distance shall be measured by following a straight line from the outer property line of the permanent or temporary residence to the nearest outer property line of any school, day-care center, park, recreational facility, elderly housing facility.
D. 
Exceptions. A registered sex offender residing within 1,000 feet of any school, day-care center, park, recreational facility, or elderly housing facility does not commit a violation of this section if any of the following apply:
(1) 
The registered sex offender established the permanent residence prior to the effective date of this bylaw; and:
(a) 
Permanent residence was established by purchasing the real property where the residence is established, as long as the registered sex offender continues to reside in, and does not move to another restricted location in Southborough different from, the permanent residence established prior to the effective date of this bylaw; or
(b) 
Permanent residence was established through a valid arm's length, fixed-term, written lease or rental agreement, executed prior to the effective date of this ordinance, as long as the registered sex offender continues to reside within, and does not move to another restricted location in Southborough different from, the permanent residence established prior to the effective date of this bylaw; or
(c) 
Permanent residence was established through a verbal lease or rental agreement at the will of the landlord, as long as the registered sex offender continues to reside within, and does not move to another restricted location in Southborough different from, the permanent residence established prior to the effective date of this bylaw.
(2) 
The registered sex offender is a minor living with his or her parent(s) or legal guardian(s), which parent(s) or legal guardian(s) has (have) established a permanent residence pursuant to § 118-3.
(3) 
The school, day-care center, park, recreational facility, or elderly housing facility within 1,000 feet of the registered sex offender's permanent residence was opened after the registered sex offender established the permanent residence.
E. 
Forfeiture of exception. If, either after the effective date of this bylaw or after a new school, day-care center, park, recreational facility, or elderly housing facility opens, a complaint or an indictment is issued by a court against a registered sex offender otherwise enjoying an exception under Subsection D and judgment enters that such sex offender has committed another sex offense, he/she will immediately forfeit that exception and be required to comply with this section.
F. 
Notice to move. A registered sex offender who resides on a permanent or temporary basis within 1,000 feet of any school, day-care center, park, recreational facility, or elderly housing facility shall be in violation of this section and shall, within 30 days of receipt of written notice of the registered sex offender's noncompliance with the chapter, move from said location to a new location, but said location may not be within 1,000 feet of any school, day-care center, park, recreational facility, or elderly housing facility. It shall constitute a separate violation for each day beyond the 30 days the registered sex offender continues to reside within 1,000 feet of any school, day-care center, park, recreational facility, or elderly housing facility. Furthermore, it shall be a violation each day that a registered sex offender shall move from one location in the Town to another that is within 1,000 feet of any school, day-care center, park, recreational facility, and elderly housing facility.
G. 
Penalties.
(1) 
Any violation of this section shall be enforced by noncriminal disposition pursuant to MGL c. 40, § 21D, as follows:
(a) 
First offense by registered sex offender: noncriminal fine of $150 and notification to offender that he/she has 30 days to move.
(b) 
Subsequent offense by registered sex offender: noncriminal fine of $300 and notification to offender's parole officer and/or probation officer and the Commonwealth's Sex Offender Registry Board that the sex offender has violated Town's bylaw.
(2) 
For purposes of this section, notice shall be deemed to be sufficient and proper if the person service by registered mail, return receipt requested, or receives in hand service or service by a Constable, Sheriff or other person authorized to serve civil process within the Commonwealth of Massachusetts or other service as a court of competent jurisdiction may allow.
A person residing within 1,000 feet of any school, day-care center, park, elderly housing facility or recreational facility does not commit a violation of this section if any of the following apply:
A. 
The person established the permanent residence and reported and registered the residence prior to April 15, 2008.
B. 
The person was a minor when he/she committed the offense and was not convicted as an adult.
C. 
The school, day-care center, park, or elderly housing facility within 1,000 feet of the permanent residence was established after the person established the permanent residence and reported and registered the residence pursuant to the Sex Offender Registry Law.
D. 
The person is incarcerated in any facility owned, maintained and/or operated by the Town of Southborough.
E. 
The person is admitted to and or subject to an order of commitment at a public or private facility for the care and treatment of mentally retarded persons pursuant to MGL c. 123B.
F. 
The person is a mentally retarded person subject to guardianship pursuant to MGL c. 201, § 6,[1] or a mentally retarded person subject to guardianship pursuant to MGL c. 201, § 6A,[2] residing with his or her guardian or residing within a group residence that is professionally staffed and supervised 24 hours a day.[3]
[1]
Editor's Note: See now MGL c. 190B, §§ 5-301, 5-303, 5-306, 5-306A and 5-309.
[2]
Editor's Note: See now MGL c. 190B, §§ 5-209, 5-303 and 5-404.
[3]
Editor's Note: Former MGL c. 201, Guardians and Conservators, was repealed in 2008. See now MGL c. 190B, the Massachusetts Uniform Probate Code.
A. 
Prohibitions.
(1) 
A registered sex offender is prohibited from entering upon the premises of a school or day-care center unless previously authorized specifically in writing by the school administration or day-care center owner.
(2) 
A registered sex offender is prohibited from entering upon the premises of an elderly housing facility unless previously authorized in writing by the on-site manager of the elderly housing facility.
(3) 
A registered sex offender is prohibited from entering upon the premises of a park or any recreational facility.
B. 
Exceptions.
(1) 
The prohibitions defined shall not be construed or enforced so as to prohibit a registered sex offender from exercising his or her right to vote in any federal, state or municipal election, or from attending any religious service.
(2) 
The prohibitions defined do not apply to a registered sex offender's place of residence when such residence is excepted under § 118-3D and § 118-4.
C. 
Penalties. Any violation of this section may be enforced by noncriminal disposition pursuant to MGL c. 40, § 21D, resulting in: (1) a noncriminal fine of $150 for a first violation; and (2) a noncriminal fine of $300 for each additional violation of this section. A registered sex offender commits a separate offense for each and every violation of this section.
A. 
The Southborough Police Department shall be charged and empowered with the enforcement of this chapter.
B. 
A written list describing the prohibited areas defined in this bylaw inclusive of school bus stops, as well as a map depicting the residency restriction areas and a map depicting the safety zones exclusive of school bus stops, shall be created by the Town and maintained by the Southborough Department of Public Works. As to school bus stops, the list, and not the map depicting the safety zones, shall govern. The Town shall review both the list and the maps no less than annually for changes. The list, the maps and a copy of this bylaw will be available to the public at the Southborough Police Department and Southborough Clerk's office, and on the Town of Southborough website.
If any clause, sentence, paragraph, subdivision, section or other part of this bylaw shall for any reason be adjudged by any court of competent jurisdiction to be unconstitutional or otherwise invalidated, such judgment shall not affect, impair or invalidate the remainder of this bylaw, and it shall be construed to have been the legislative intent to enact this bylaw without such unconstitutional or invalid parts therein.