Pursuant to MGL c. 40, § 6N, the Board of Selectmen is
hereby authorized to make temporary repairs on private ways which
have been open to public use for a period of six consecutive years
or more, provided the repairs are for the protection of the health
and safety of the general public using such private ways, subject
to the provisions of this bylaw.
The Town may make minor temporary repairs upon a private way in the
Town. Such repairs shall be made only after the Board of Selectmen
determines that, based on recommendation from the Highway Superintendent,
the repairs are required by public necessity. No petition by abutters
shall be necessary for the Town to make such minor repairs.
Minor temporary repairs shall include the filling of holes in the
subsurface of such ways and repairs to the surface materials thereof.
Materials for such repairs, where practical, should be the same as,
or similar to, those used for the existing surfaces of such ways,
but may include surfacing the ways with, bituminous materials, including
but not limited to bituminous concrete.
Minor temporary repairs shall be limited to minor work such as filling,
patching and not more than grading or scraping twice per year. Such
repairs shall not include surfacing, resurfacing, installation of
drainage of any kind or the original construction of sidewalks, curbing,
street construction, or brush cutting and tree removal.
The cost of such minor temporary repairs shall be borne entirely
by the Town, subject to funds being available through an appropriation
voted by the Town; no betterment charges shall be assessed against
the abutters; and, no cash deposit shall be required for minor temporary
repairs.
The Town may make major temporary repairs on a private way in the
Town. Such repairs shall be made only after a petition has been filed
in the office of the Board of Selectmen. Such petition shall identify
the repairs to be made and shall be signed by the owners of more than
50% of the primary lineal frontage of said way. Where a property is
owned by more than one person or entity, each such person, and where
appropriate, each trustee and/or representative, must sign the petition
in order for that property's frontage to count towards the frontage
percentage. Following the submission of said petition, the Board of
Selectmen shall conduct a public hearing, at which hearing interested
persons may present evidence relative to the petition. No repairs
shall be made until the board, by a majority vote of its members,
and following such hearing, determines that such repairs are required
by public necessity, and until the town meeting has appropriated funds
for such repairs.
Following such determination by the board that said repairs are a
public necessity, the owners of land abutting such public way who
derive benefit from said repairs shall be assessed betterment charges
by the board. Betterment charges, in an amount of 100% of the aggregate
cost to plan, prepare, and repair the private way shall be assessed
on the proportion of the lot frontage on the way or portion of the
way to be repaired to the frontage of said repaired way or other proportional
method as may be required by the Board of Selectmen. A cash deposit
in the amount of two hundred fifty dollars ($250) shall be required.
Except as herein otherwise provided, the provisions of MGL c. 80,
as it relates to public improvements and assessments therefor, shall
apply to major temporary repairs, as defined in this bylaw, to private
ways where such repairs are ordered to be made under authority of
this bylaw.
Any assessment made in accordance with the provisions of this bylaw
upon the owner of an estate shall be paid within six months of the
date that such assessment is levied, where the total assessment is
less than two hundred dollars ($200).
Where the total assessment amounts to two hundred dollars ($200)
or more, the owner of the estate may divide the payment of such assessment
into not more than 10 equal payments, the final installment payment
to be made not later than five years from the date of the levy of
the assessment.
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.
The Town shall not be liable or accountable for any damage caused
by repairs made pursuant to this bylaw. This bylaw does not confer
any obligation or duty on the Town or its agents to either initially
place or 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]