[HISTORY: Adopted by the Annual Town Meeting 5-15-2018 by Art. 23.[1] Amendments noted where applicable.]
[1]
Editor's Note: This article was originally adopted as Chapter
84 but was renumbered to maintain the organizational structure of
the Code.
Pursuant to the provisions of MGL c. 40, § 6N, the
Board of Selectmen may authorize temporary repairs to be made to private
ways that have been open to the public for a minimum of 10 years,
out of funds appropriated for this purpose by the Town Meeting. In
all cases the entire cost shall be assessed as a betterment upon those
properties which benefit from the repairs and owners of such properties
shall be required to make a cash deposit for all or any portion of
the cost of such repairs.
The repairs must be temporary in nature, such as filling, grading,
patching and surface coating, may include such repairs to drainage
swales, conduits and structures as are necessary to preserve the integrity
of surface repairs to the roadway, and shall not be such as to constitute
a reconstruction of the roadway. All repairs must be determined by
the Public Works Director to be required by public necessity.
A minimum of 51% of the owners of property abutting the portion
of the way proposed to be repaired must petition for the repair, with
each ownership entity counting as one.
If betterments are to be assessed, they shall be assessed upon
each parcel of land benefiting from such repair in proportion to linear
frontage on the proportion of the way to be improved or other proportion
to linear frontage on the proportion of the way to be improved or
other proportional method as may be required by vote of the Town Meeting.
This bylaw does not confer any obligation or duty on the Town
or its agents to either initially place or to thereafter maintain
and repair said private ways so that they are reasonably safe and
convenient for travel by being free from defects or want of repair.
The making of such temporary repairs to private ways, no matter how
often or to what extent, does not constitute an acceptance by the
Town of such private ways as public ways, nor does it constitute a
way being "maintained and used as a public way" under the Massachusetts
Subdivision Control Law.[1]
[1]
Editor's Note: See MGL c. 41, § 81K et seq.
The Town, in making repairs under this section shall not be
liable for any damages to persons or property caused by negligent
repair or maintenance of the private way.
No repair of a private way shall be undertaken until the Select
Board has in its possession agreements executed by at least 75% of
abutting owners on the portion of the way to be repaired holding the
Town harmless from any additional damage arising from any negligent
repair, and which includes the following provisions:
A.
That the Town assumes no liability to such owners by making the repairs;
B.
Jointly and severally, to indemnify and hold harmless the Town with
respect to such statutory liability and any and all other liability
for claims of injury, death or property damage to such owners or third
parties caused by alleged defects in the way, including attorneys'
fees and other costs of defense;
C.
That should the Town decide not to continue to provide temporary
repairs to such way, the owners will themselves keep such way in good
repair so as to minimize the liability of the Town for having undertaken
such repairs;
E.
That if betterment assessments are assessed for the repairs, the
owners will not appeal the amount of the assessment and agree that
the assessment may be apportioned over five years.
Repairs or maintenance under this section shall not be performed
on private ways that do not remain open to public use, or on private
ways that are posted as restricted to private use.
