[HISTORY: Adopted by the Board of Selectmen of the Town of
Middleton 1-14-2014; amended in
its entirety 3-31-2015. Amendments
noted where applicable.]
A.
The Board of Selectmen of the Town of Middleton set forth the following procedures (the "Roadway Acceptance Procedures") for the layout and acceptance of subdivision roads and other ways as public ways. The Roadway Acceptance Procedures contain the procedures required by MGL c. 82, §§ 21 through 23, MGL c. 41, § 81I, and the Middleton Town Code, Chapter 250 and must be followed by applicants who wish to submit roads created through the Subdivision Control Act[1] or other roads for acceptance by the Town of Middleton.
[1]
Editor's Note: See MGL c. 41, § 81K et seq.
B.
Final approval of a subdivision plan by the Planning Board does not constitute the laying out or acceptance by the Town of any road or entitle the road to such acceptance. Under the Planning Board's Subdivision Rules and Regulations (Chapter 250 of the Town Code, Attachment 1: Street Construction Standards), the maintenance of all roadways and the operating costs of all installed streetlights within the subdivision are the responsibility of applicants and their successors until such roadways are accepted by Town Meeting. This maintenance shall include the repair and maintenance of roadway, curbs, sidewalks, drainage system, sidewalks, and utilities. Snow removal, salting, and sanding of roadway surfaces adequate for public safety shall be included in the maintenance responsibility.
C.
All applicants who wish to have a private way be accepted as a public
way, and their attorneys and engineers, must review, understand and
follow these Roadway Acceptance Procedures, provide the required documents,
and meet all deadlines. Compliance with these Roadway Acceptance Procedures
and adherence to deadlines will minimize confusion, costs, and delay
for all parties.
D.
Compliance with the Roadway Acceptance Procedures is the legal and
financial responsibility of the applicant. The Roadway Acceptance
Procedures are not intended to give legal advice.
E.
The applicant should meet with the Planning Coordinator to review
any outstanding issues or missing information with the subdivision
and/or file before initiating the Roadway Acceptance Procedures. Applicants
should also consult with their own attorney to ensure compliance with
the Roadway Acceptance Procedures. The applicant is responsible for
ensuring all documents are correct and that the Town boards, departments,
and Town Counsel are satisfied with the supplied documentation.
(1)
Acceptance of a road as a public way involves three steps:
(a)
First, the Board of Selectmen must lay out the road as a public
way in accordance with the requirements of MGL c. 82, §§ 21
through 24, which includes a referral of the layout to the Planning
Board for its recommendations in accordance with MGL c. 41, § 81I.
(b)
Second, Town Meeting must vote to accept a road as a public
way.
(c)
Third, the Board of Selectmen must acquire by gift the deed
in the road and drainage, water, sewer, utility, access, buffer, and/or
other related easements (the "appurtenant easements") within 120 days
from the close of the Town Meeting at which the road is accepted as
a public way.
(2)
Compliance with all three steps is necessary for a road to become
a public, Town way.
F.
Applicants are strongly cautioned to examine the title to the road
they wish the Town of Middleton to accept as a public way and to any
lots on which the Town needs appurtenant easements before they commence
the Roadway Acceptance Procedures. If the subdivision developer reserved
the fee to the road and the appurtenant easements that need to be
granted to the Town, the grant of deed may be signed only by the developer.
However, if the developer did not reserve the fee to the road and/or
the appurtenant easements, each and every person owning the fee to
the road and/or the lots on which the Town needs the appurtenant easements
must grant the Town such easements. The Town of Middleton will exercise
its right to acquire easements by eminent domain only under limited
circumstances and in the sole and absolute discretion of the Board
of Selectmen. As a condition of acquiring easements by eminent domain,
all the owners of the roads and the lots subject to the appurtenant
easement must sign a waiver of appraisal, damages, and relocation
benefits. It is the Town's preference to acquire the fee in the
roadway, rather than an easement; the Selectmen shall, at their discretion,
determine if, in any particular instance, they are willing to accept
fee or easement interests in the roadway.
Days prior to Town Meeting: 120 to 150.
(The deadline for an applicant to submit a petition for street
acceptance to the Selectmen shall be no later than 120 days prior
to the scheduled Town Meeting. Applicants are encouraged to commence
the Roadway Acceptance Procedures as early in the process as possible)
Submit petition and documents to Board of Selectmen. The applicant
must petition the Board of Selectmen in writing to lay out a road
as a Town way. The petition must include three copies of the following:
A.
Title certification: A title certification prepared by an attorney
licensed in Massachusetts, running to the benefit of the Town, listing
the names and addresses of all persons currently owning the fee to
the road (generally either the developer of the subdivision and/or
the abutting lot owners) and the lots affected by drainage, water,
sewer, utility, access, buffer, and/or other related easements (the
"appurtenant easements") to be granted to the Town;
B.
Copies of deeds and other instruments: A copy of the deed into the
applicant, if none of the lots have been conveyed. If any of the lots
have been conveyed, the applicant shall also submit a copy of all
the deeds out from the developer, deeds either granting or reserving
easements to the developer, and any covenants, declarations or other
instruments by which the developer retains or reserves the fee in
the roadway and appurtenant easements. Unless the developer expressly
states in the deed to a lot that the developer is reserving the fee
to the road, it is presumed that the lot owner owns the fee to the
centerline of the road abutting the lot;
C.
As-built plans: A copy of the definitive subdivision as-built plan,
prepared and stamped by a Massachusetts registered professional engineer
and professional land surveyor, showing the existing roadway and all
utilities, public and private, above and below grade, and in compliance
with the other requirements of the Subdivision Rules and Regulations.
All pages of the final version of the as-built plans submitted to
the Town should contain a stamp from the same engineer and have the
identical date.
D.
Roadway acceptance or definitive subdivision plans: A copy of the
roadway acceptance, showing the metes and bounds of the road and any
and all other easement areas, in recordable form, with a signature
block provided for the Planning Board. This plan is referred to as
the "layout plan." The definitive subdivision plan or the as-built
plan can be used as the layout plan, provided it shows the correct
metes and bounds boundaries of the roads as built and the easement
areas;
E.
Legal descriptions. Legal description, with metes and bounds, of
the road and all other easement areas that are to be conveyed to the
Town. Legal descriptions are not required if the metes and bounds
of the road and the easement area is legibly shown on the layout plan;
F.
Draft warrant article. Draft article shall refer to the layout plan,
which shall include the metes and bounds description of the road and
all other easement areas to be conveyed to the Town; and
Approximately 90 to 120 days prior to Town Meeting:
A.
Vote of intent to lay out as a public way. The petition is placed
on the Selectmen's agenda and the Selectmen formally vote their
intention to lay out the road as a public way.
B.
Referral to Planning Board and Planning Board review. The Selectmen
forward the layout plan and legal descriptions to the Planning Board
for its report (per MGL c. 41, § 811). The vote to refer
to the Planning Board can be taken at the same time the Selectmen
vote their intention to lay out the road as a public way. Once the
Planning Board receives such notice, the Planning Board may solicit
recommendations from the Public Works Superintendent, the Police Chief,
the Fire Chief, and/or other officers or boards. The Planning Board
may forward the layout plan and legal description to the Town's
review engineer for review and comment. The Town's engineer and/or
the Public Works Department may inspect the road and easement areas
to determine if the road has been properly constructed and all subdivision
improvements have been properly installed. The applicant must meet
with the Planning Board or its designee, if so requested, to review
any outstanding issues related to the road and/or the easement areas.
The applicant shall correct any deficiencies, at its sole expense.
The Planning Board will discuss the layout plan at a public meeting
after notifying all abutters to the way shown in the layout plan by
mail at least seven days before the meeting.
As determined by the Board of Selectmen:
A warrant article is prepared for each road that the Selectmen
vote to lay out.
Approximately 30 to 60 days prior to Town Meeting:
A.
Notice to owners. The Selectmen will notify owners of the land included
within the layout plan by certified mail of the public meeting at
which the Selectmen will vote to adopt the layout of the road as a
public way. Notice will be given to owners at least seven days prior
to the public meeting.
B.
Adopt order of layout. Once the Planning Board has made its recommendations
or 45 days lapse since the layout was referred to the Planning Board,
whichever is earlier, the Selectmen hold a public meeting to determine
if the road is ready for acceptance. The owners and abutters are asked
for input in this decision. At this meeting, the Selectmen may vote
to lay out the road as a public Town way, or decline to lay out the
road, or may continue the matter to a later meeting in order to obtain
additional information, i.e., Planning Board report, site visit, among
others. Abutters will not be formally notified of the continued public
meeting. For those roads that the Selectmen vote to lay out, a formal
vote will be taken and an order of layout will be signed. The vote
and order of layout cannot be taken until the Planning Board has made
its recommendations or 45 days lapse since the layout was referred
to the Planning Board, whichever is earlier.
At Least seven days prior to Town Meeting:
The original signed order of layout, the layout plan, and the
legal descriptions are filed with the Town Clerk by the Selectmen.
Town Meeting must vote on whether to accept the listed road
as a public Town way, and authorize the Board of Selectmen to acquire
the fee in the roadway and the appurtenant easements by gift, purchase
or eminent domain and appropriate funds for the fee acquisition, if
needed. A majority vote is needed to accept a road that is shown on
an approved subdivision plan. A two-thirds vote is needed to accept
any other way. A two-thirds vote is needed to appropriate funds for
acquisition by purchase or eminent domain, if needed.
NOTE: Roads do not automatically become public ways upon Town
Meeting acceptance. In order to complete the Roadway Acceptance Procedures,
the Town must obtain easements in the road and/or abutting lots within
a certain period of time, as stated below.
Promptly after Town Meeting, the applicant's attorney must
submit to the Town an updated certification listing the names and
addresses of persons then owning the fee to the road and all easement
areas.
Within 120 Days of close of Town Meeting at which road is accepted:
A.
Acquisition of land and easements. The Town must acquire the necessary
deed and easements by gift and record the deed, easements and layout
plan within 120 days of the close of the Town Meeting at which the
road is accepted as a public way. The Town must acquire the deed and
easements by grant of fee in roadway, easements and/or by eminent
domain.
B.
Acquisition by grant. The developer and/or the lot owners grant the
Town the necessary roadway fee and appurtenant easements, if any,
by gift. The following must occur:
(1)
Grant of fee in roadway by deed. The developer and/or lot owners
must grant the Town the fee in the roadway and appurtenant easements
by gift. A form of grant of easements is attached (Attachment A).[1] The form must be adapted to fit the particulars of each
roadway acceptance;
[1]
Editor's Note: Attachment A is included as an attachment
to this chapter.
(2)
Subordination of mortgages. If the road and/or the lots to be subject
to the Town's easements are encumbered by a mortgage (including
lines of credit, whether used or not) or other lien, it is the applicant's
responsibility to provide the Town with a signed subordination of
mortgage from each and every mortgagee, expressly subordinating their
lien to the Town's easement. A form of subordination is attached
(Attachment B).[2]If the Town does not receive subordinations from all mortgagees,
the Selectmen may decide, in their sole and absolute discretion, not
to accept the road;
[2]
Editor's Note: Attachment B is included as an attachment
to this chapter.
(3)
Acceptance. The Board of Selectmen will sign an acceptance of the
grant of the fee in the roadway and appurtenant easements, and attach
to it a certified copy of the Town Meeting vote authorizing the acceptance;
and
(4)
Recording. The grant of the fee in the roadway and appurtenant easements,
the layout plan, the acceptances and Town Meeting vote are recorded
by the applicant with the South Essex Registry of Deeds within the
aforesaid one-hundred-twenty-day period at the applicant's cost.
C.
Acquisition by eminent domain:
(1)
Waiver of appraisal, damages, and relocation benefits. Before the
Town will exercise its powers of eminent domain, all persons owning
the fee to the road and the lots that will be subject to the Town's
fee in the roadway and appurtenant easements must sign a waiver of
appraisal, damages, and relocation benefits. The Selectmen may, in
their sole and absolute discretion, decide not to proceed with the
roadway acceptance until all owners have signed the waiver. The form
of waiver is attached (Attachment C)[3];
[3]
Editor's Note: Attachment C is included as an attachment
to this chapter.
(2)
Indemnification. If the road and/or the lots are subject to mortgages
(including lines of credit, whether used or not) or other lien and
the developer and/or lot owners has not obtained subordination of
mortgages from the mortgagees, the Selectmen may, in their sole and
absolute discretion, require indemnifications from the applicant and/or
the lot owners, protecting the Town from liability if the mortgagees
bring a claim against the Town. Such indemnification, if required,
shall last for the period of time within which mortgagees may bring
claims against the Town for the taking;
(3)
Order of taking. The Selectmen sign an order of taking, taking the
fee in the roadway and appurtenant easements by eminent domain. A
certified copy of the Town Meeting vote authorizing the taking is
attached to and recorded with the order of taking;
(4)
Recording. The order of taking, the layout plan, and certified Town
Meeting vote are recorded by the applicant with the South Essex Registry
of Deeds within the aforesaid one-hundred-twenty-day period, and within
30 days of the Selectmen's execution of the order of taking,
at the applicant's cost; and
(5)
Notice of taking. The Town will send notice of the taking by certified
mail to the owners and mortgagees affected by the taking.
D.
Waiver. The Selectmen may waive any of the Roadway Acceptance Procedures
that are not mandated by statute if, in their sole and absolute discretion,
the circumstances warrant a waiver.
