[HISTORY: Adopted by the Town Meeting of
the Town of Southborough 4-17-2008 ATM by Art. 51. Amendments noted where applicable.]
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]
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.
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.
