What follows is a memorandum which will be submitted to the Newton Board of Alderman by a Newton Center resident (and, incidentally, the legal correspondent for Newtoncenter.com)

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MEMORANDUM

To: Newton Board of Aldermen
Date: February __, 2011

LEGAL CONSIDERATIONS

As practicing attorneys and residents of Newton, we are contacting you concerning the proposed snow removal ordinance. If you intend to adopt this proposal, we suggest you consider the following before you vote.

1. Liability. Do you intend the requirement to remove snow and ice from the public sidewalk in order to allow safe passage of pedestrians and wheelchairs be an obligation to the public or an obligation limited to the City of Newton, as described by the Massachusetts Supreme Judicial Court in the case of Gamere v. 236 Commonwealth Ave. Condo Ass’n and Beta Gamma 19 Mass. App. 359 (1985)? If the latter is your intent, we suggest you provide language to that effect as it may save many hours and the expense of legal fees to have the Courts make a determination as to your intent.

2. Standard of Care. Do you intend an absolute standard that all snow and ice be removed and the city side walk be kept continuously free of the same, or do you want homeowners to use reasonable efforts to remove the snow once, following a storm? If the latter, you should add language requiring homeowners to use “reasonable efforts” to remove snow and ice one time following a storm. You might want to review a 2010 decision by the SJC, Papdopoulos vs ____, adopting a reasonable efforts standard for the removal of snow and ice on private property.
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3. Nature of the violation. Is it your intent that a violation of this proposed ordinance be a criminal violation of our Ordinances or non-criminal violation, as are some of our traffic laws? If you intend a non-criminal violation you should add the appropriate language.

4. Homeowner’s Insurance. Are Homeowners covered by Homeowners Liability Insurance in the event a pedestrian suffers a slip and fall injury on a city sidewalk which has been cited by the City for failure to comply with the ordinance?

PRACTICAL CONSIDERATIONS

2. City should monitor itself. Countless crosswalks end at snow drifts left by city street plows with no way to access sidewalk.

a. City street plows create huge snowdrifts on sidewalks bordering residences creating an impossible burden for homeowners to clear. Shouldn’t the City have to clear sidewalks where city street plows have plowed snow onto sidewalks

3. Monitoring compliance with this ordinance is a gargantuan task and expense.

a. Does the city propose to create a task force to inspect every residence (30,000 +/-) on every street following every snowstorm? Will the inspectors be equipped with cameras and tapes for measuring width of cleared sidewalks? What is the cost of this task force?
b. How large a staff will be required to deal with penalties and appeals of fines? What is the cost to staff this project?

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We see these issues as significant areas of concern that can be best corrected by you before the law is enacted rather than after enactment through extensive litigation.