Purpose. The purpose of this article is to provide for the permanent
or temporary construction or repair of private ways in the interest
of public safety.
Definitions. The following words, terms and phrases, when used in
this article shall have the meanings ascribed to them in this subsection
except where the context clearly indicates a different meaning.
All persons holding ownership rights in property abutting
a private way and all persons holding ownership rights in any property
the access to which, by necessity, requires travel over such private
way.
Any property actually abutting the private way regulated
by this article and any property the access to which, by necessity,
requires travel over such private way.
The term "statutory private ways" means those ways which have
been laid out pursuant to M.G.L. c. 82, § 21 and are subject
to M.G.L. c. 84, §§ 23, 24. Such ways are open to the
same type and extent of use as public ways.
The term "dedicated private ways" are those ways that were not
laid out under statutory authority but are open to free public use
of a nature and extent sufficient to constitute evidence of the permanent
intention of abutting property owners to abandon private rights in
the ways.
The term "permissive private ways" means those ways that have
not been laid out by a public authority or dedicated to public use
and are wholly the subject of private ownership. A permissive private
way is open to public use solely by the continuing permission or license
of the owner or abutter where such owner or abutter displays a continuing
intent to exercise dominion over the way and may, for example, post
the way with signs limiting or prohibiting public use.
The term "unconstructed" or "paper ways" means those ways or
portions thereof that have been created on paper by a deed, easement,
plan or other instrument or by subdivision or approval not required
(ANR) plan under the Subdivision Control Act, but have not yet been
paved, improved or otherwise constructed on the ground.
Pursuant to chapter 325 of the Acts of 2002 and M.G.L. c. 84,
§ 12 and c.40, § 6N, this article is intended
to establish the process by which temporary and permanent repairs
may be made to private ways.
In order to qualify for permanent or temporary construction
or repair under this article, all private ways otherwise eligible
must have been open to the public for six or more years and must abut
four or more occupied residences or operating businesses.
None of the ways described in this section are of the type of
which the city has an existing duty of maintenance or repair for which
the city is liable in damages for defects. Abutters to private ways
are responsible for the maintenance of such ways. Constructed private
ways must be maintained so that there are no defects to impede the
safe passage of emergency vehicles. Nothing in this article is intended
to create any duty to maintain or repair such private ways or to subject
the city to any liability for defects therein.
Permanent construction or repair may be performed by the city in accordance with the procedures set forth in § 222-114 below.
Temporary repair shall include the filling of potholes in the subsurface
of private ways and repairs to the surface materials, but shall not
include significant excavation, regrading, drainage work, or the resurfacing
thereof.
Temporary repair may be performed by the City upon a determination
by the director of public works that the condition of a way adversely
affects the safety of the inhabitants and that repair of a permanent
nature is unnecessary to cure the condition, or upon a determination
that the condition of the way constitutes an emergency which requires
immediate repair in order to protect the health or safety of the inhabitants
of the City.
Such temporary repair shall not be considered as maintenance of the
private way nor shall the way be considered a public way as the result
of any repair.
The total cost of the approved permanent construction or repair work
shall be paid by the abutting owners, the amount to be paid will be
divided by the number of abutting parcels and assessed to the owners
thereof.
Betterments shall be assessed and collected for such work in accordance
with the provisions of M.G.L. c. 80, § 1 et seq. and other
applicable laws. All betterments shall be apportioned at either five
or ten-year terms based on the size of the project. Individual total
assessments totaling $3,000 or more may be apportioned over a ten-year
term.
Any performance of permanent construction or repair to a private
way as set forth in this article is subject to the availability of
funding and the authorization for said funding must be made by recommendation
of the Mayor and a two-thirds vote of the City Council.
Abutters to a private way shall begin the process of seeking permanent
repair to the private way by submitting a petition to the city Clerk
signed by not less than 75% of all abutting owners to the private
way. Petitioners shall use only official petition forms, available
from the City Clerk's office upon request.
Petitioners shall agree in writing that 1) the City may not
accept the road as public as a result of the permanent repair process
outlined herein; 2) City employees shall be allowed on each abutting
parcel in order to repair the private way; 3) any deviation from the
current road layout of the existing travelled way as a result of the
repair of the private way shall be done at the discretion of the Director
of Public Works; and 4) a nonrefundable fee shall be assessed with
the petition of $1 per linear foot of the private way at the discretion
of the director of public works. Petitioners shall include the name
and contact information for no less than three primary contact persons
who shall also be abutting owners. In order to proceed, the City Clerk
must certify all signatures on the petition as submitted.
The Mayor's office shall refer the petition to the Department of Public Works for a feasibility determination whereby the Department of Public Works shall 1) consult with the Fire Department, Police Department, Conservation Commission, Chief Financial Officer/Treasurer, and the City Engineer; 2) determine the parameters of the project; and 3) set a price range for the project. The Director of Public Works shall then respond to the primary contact persons with, among other things, a memorandum outlining the determinations and an official abutters' list to be used in noticing a meeting of all abutters' as outlined in § 222-114E.
Three or more abutting owners shall call and hold a meeting of abutting
owners. Notice of such meeting shall include the date, time and location
thereof and shall be given at least seven days in advance by posting
the notice in the City Clerk's office and by mailing the notice to
all abutting owners by certified mail, return receipt requested. A
receipt of the certified mailing shall be required as evidence that
notice has been provided to all abutting owners.
At the meeting as outlined in § 222-114E, the abutting owners shall vote to determine whether certain repairs are to be sought according to 1) the project parameters and 2) the price range as provided by the director of public works. 75% of all abutting owners on the private way must be present at the meeting; 66% of all abutting owners on the private way must vote in favor in order to qualify for permanent repair under this article.
Any abutting owner may designate a proxy to represent them and cast the requisite vote(s) on matters required by this section. Such a designation shall be a notarized letter by the abutting owner that includes the following: 1) the name and address of the abutting owner, 2) the name and address of the proxy, 3) language from the abutting owner expressly granting permission to the proxy to vote on the abutting owner's behalf, 4) a copy of the proxy's valid state or federal picture identification, and 5) a copy of the abutting owner's valid state or federal picture identification and 6) the abutting owner's signature. The designation documents must be 1) delivered to the City Clerk no later than 48 hours before the date and time set for the meeting at which votes will be cast, and 2) presented at the meeting under § 222-114E prior to voting.
An official record of the meeting as outlined in § 222-114F, including the attendees' names, addresses and signatures, as well as evidence of the votes cast shall be submitted to the City Clerk within seven days of the meeting.
Upon the Mayor's submission of the petition, the City Council shall
hold a public hearing within 60 calendar days except that, by a 2/3
vote thereof, the deadline for the hearing may be extended by no more
than 30 days. Review of the petition by the City Council shall include
a vote on 1) a determination that the construction or repair is required
by public necessity and 2) an authorization of funding for the project.
All petitions requesting permanent construction or repair pursuant to § 222-114 shall be submitted annually to the City Clerk no later than December 31 in order to be scheduled for completion the following year.
No term or provision of this article shall be interpreted or construed
to constitute the acceptance by the City of any duty, responsibility
or liability for the enforcement of any private right of any petitioner
or abutting owner, including without limitation any right to improve
or maintain a private way or to keep a private way free from encroachment.