[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.]
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 or other roads for acceptance by the Town of Middleton.
Editor's Note: See MGL c. 41, § 81K et seq.
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.
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.
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.
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.
Acceptance of a road as a public way involves three steps:
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.
Second, Town Meeting must vote to accept a road as a public way.
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.
Compliance with all three steps is necessary for a road to become a public, Town way.
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:
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;
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;
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.
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;
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;
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:
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.
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:
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.
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:
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.
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:
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). The form must be adapted to fit the particulars of each roadway acceptance;
Editor's Note: Attachment A is included as an attachment to this chapter.
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).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;
Editor's Note: Attachment B is included as an attachment to this chapter.
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
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.
Acquisition by eminent domain:
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);
Editor's Note: Attachment C is included as an attachment to this chapter.
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;
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;
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
Notice of taking. The Town will send notice of the taking by certified mail to the owners and mortgagees affected by the taking.
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.