§ 12-178. Enforcement.

The tree warden or his/her designee, in consultation with the tree commission, shall enforce this article and any regulations, orders, violation notices, enforcement orders and permit conditions on behalf of the city, and may pursue all civil and criminal remedies for such violations pursuant thereto. If the tree commission cannot be consulted due to extenuating circumstances, the tree warden shall communicate, in writing or by internet mail (email) to the chairperson, the details of the situation within forty-eight (48) hours of having carried out the enforcement.

(1)

Civil and injunctive relief. If a person violates the provisions of this article and/or any regulations, orders, violation notices, enforcement orders and permit conditions issued hereunder, the tree warden may seek injunctive relief in a court of competent jurisdiction restraining the person from activities which would create further violations or compelling the person to perform abatement or remediation of the violation.

(2)

Orders.

a.

The tree warden may issue a written order to enforce the provisions of this article and any regulations, orders, violation notices, enforcement orders and permit conditions hereunder, which may include requirements to:

i.

Cease and desist from construction or land disturbance until there is compliance with this article and regulations, and an approved construction permit, including the tree management plan and the erosion and sediment control plan;

ii.

Repair, maintain, or replace the tree management system or portions thereof in accordance with the this article, the city tree plan, tree regulations, or tree work plans;

iii.

Remediate adverse impact resulting directly or indirectly from malfunction of the tree environment.

Notice of the order or enforcement action shall be given by hand, by certified mail, or by registered mail.

b.

If the tree warden determines that abatement or remediation of contamination, land grade or compaction changes or other adverse impacts is required, the order shall set forth a deadline by which such abatement or remediation must be completed by the violator or property owner.

(3)

Criminal penalty. Any person who violates any provision of this article and/or any regulations, orders, violation notices, enforcement orders and permit conditions issued hereunder, shall be punished by a fine of three hundred dollars ($300.00) or the otherwise maximum allowable by state law. Each day or part thereof that such violation occurs, or continues to occur by failure to comply with an order or notice from the tree warden shall constitute a separate offense.

(4)

Non-criminal disposition. As an alternative to criminal prosecution or civil action, the city may elect to utilize the non-criminal disposition procedure set forth in M.G.L.A. c. 40, § 21D as a general ordinance in which case the tree warden of the city shall be the enforcing person. The penalty for violations shall be three hundred dollars ($300.00) or the otherwise maximum allowable by state law. Each day or part thereof that such violation occurs, or continues to occur by failure to comply with an order or notice from the tree warden shall constitute a separate offense. When offense(s) result in removal, death or irreparable damage of a public tree, as determined by the tree warden, the responsible party shall incur the cost of removal and replacement as determined by the tree warden, in addition to the fine.

(5)

Entry to perform duties under this article. To the extent permitted by state law, or if authorized by the owner or other party in control of the property, the tree warden, his agents, officers, and employees may enter upon privately owned property for the purpose of performing their duties under this ordinance and regulations and may make or cause to be made such examinations, surveys or sampling as the tree warden deems reasonably necessary.

(6)

Appeals. Decisions or orders of the tree warden shall be final. Further relief of a decision made under this article shall be reviewable in superior court in an action filed in accordance with M.G.L.A. c. 249, § 4.

(Ord. of 6-25-12(1))