[Adopted 5-6-1996 ATM, Art. 17; amended in its entirety 11-13-2023 FYTM by Art.
6]
A.
In the event that a group of property owners, each of whom owns property
abutting and having rights on a private road which has been open for
public use continuously for at least the last five years, wish the
Town of Brewster to finance the repair of their private road, they
shall engage a professional engineer licensed to practice in Massachusetts
and experienced in road construction and repair who shall develop
a proposal for the repair of the private road, including a certified
survey plan of the private road to be repaired, or relevant portion
thereof. Eligible repairs include, without limitation, any or all
of the following: new or additional drainage and stormwater facilities;
new berms; driveway aprons; striping; the filling of existing cracks;
patching; roadbed repair; and the application of one or more layers
of bituminous concrete. As used herein, a private road "open for public
use" includes a road open to public invitees whose access is not actively
and openly restricted with gates, signage or the like. Further, a
private road, which includes a private street or private way within
its meaning, is a road that has not been laid out, dedicated, or adjudicated
by a Massachusetts court as a public way but has either been laid
out under the Subdivision Control Law[1] or is otherwise a matter of record with the Barnstable
Registry of Deeds or the Town Clerk. The official record of public
roads in the Town of Brewster is kept at the Town Clerk's office,
and shall be amended from time to time.
[1]
Editor's Note: See MGL c. 41, §§ 81K through
81GG.
B.
The proposal shall specify the projected useful life of the repaired
private way, and in no event shall the projected useful life be less
than the financing term, which may be allowed up to 15 years. All
costs of preparing the plan, obtaining cost estimates and preparing
the petition described below shall be the exclusive responsibility
of the petitioners.
C.
The proposal shall include at least three bids from licensed and
insured contractors experienced in road construction and repair to
complete the work outlined in the survey plan and other proposal documents.
Other objective sources to establish costs may be used instead at
the discretion of the Town, including current construction costs recognized
and maintained by the Massachusetts Department of Transportation.
After receipt of the bids, or otherwise substantiating estimated costs
to the satisfaction of the Town, the property owners shall prepare
a petition to the Select Board for the Town of Brewster to finance
the work in an amount certain, including a 10% contingency amount.
The petition shall list the properties subject to the petition by
tax map and parcel number together with the owners' names of
record from the most recent tax list with a space for each owner to
place his or her signature. The petition must state that each signature
represents an irrevocable agreement by each signatory to repay to
the Town of Brewster, through the mechanism of a betterment added
to each owner's real estate tax bill, his or her pro rata share
of the total amount to be financed plus interest and administrative
costs, which administrative costs shall not exceed 4% of the project.
The petition shall not be presented to the Select Board, nor shall
the Select Board recognize such a petition, unless a majority of the
owners shall have agreed to the proposal and its financial commitment
by having signed the petition.
D.
The petition, accompanied by the proposal documents, including the
cost estimates and survey plan, shall be submitted to the Select Board's
Office. The Select Board shall refer every such petition to the Assessor's
Office for verification that signatories are the owners of record
of the subject properties, and confirmation that a majority of such
owners have signed. The Select Board shall consider all submitted
petitions that are passed by the Assessor's Office, and will
hold a public hearing on the proposed project, inviting abutters on
the private road. If the Select Board determines that the proposed
repairs are in the public interest and are within the financial capability
of the Town, the Select Board may place the petition on the warrant
for any Special or Annual Town Meeting. The Select Board shall thereafter
send out proxies to the owners noting scope and cost changes, if any.
The proxies must be returned at least 45 days prior to the Town Meeting
at which they are to be considered. If the proxies are returned within
such time, the Select Board may place the petition on the Town Meeting
warrant, provided that a majority of owners have signed said proxy.
E.
Long-term financing may be issued for said project by the Town for
up to a fifteen-year term. If the Town Meeting votes to authorize
financing for the project, an engineer representing the owners, and
preferably the engineer who prepared the original plan and proposal,
shall be named "Project Manager." He shall prepare a new request for
quotations with the bids to be directed to the Town Manager. The Project
Manager and the Town Manager shall select the best bid to do the work.
The Project Manager shall advise the Director of Public Works 48 hours
in advance of each phase of the project and certify, in writing, to
the Director of Public Works that each phase of the work has been
completed to the Project Manager's satisfaction. The Director
of Public Works shall inspect the completed work and advise the Town
Finance Director that the work has been completed according to the
endorsed petition, including the survey plan therein, so that payment
can be made. After completion of the project, residents can choose
to apportion their assessment into equal portions to be paid yearly
over a period of up to 15 years.
F.
The petition procedure set out herein shall apply equally to a petition
involving a group of private roads within a subdivision provided that
where a lot has frontage on, and derives access from, more than one
road, the owner of such lot shall be entitled to only one vote. Owners
of lots that are assessed as unbuildable and lots that may not be
built upon pursuant to a conservation restriction or the equivalent
shall not be entitled to vote, and such lots shall not be subject
to betterment assessments hereunder.
G.
The Town of Brewster shall incur no liability for any damages of
any nature whatsoever arising from the project by virtue of the Town's
agreeing to carry out any repair of a private way. The owners who
benefit from the repair and are assessed betterments shall be deemed
to have indemnified and held the Town harmless against any and all
claims. The Town makes no warranty or guarantee concerning the completed
betterment project.
H.
Any private way improved under the provisions of this article need
not be brought up to full Town road standards. Any private way improved
under the provisions of this article shall continue to remain a private
way but nonetheless open for public use.
I.
Except as otherwise provided in this article, private road betterments
shall be assessed and committed according to MGL c. 80 and Chapter
373 of the Acts of 2006. Betterments shall be recorded and serve as
record liens against the subject properties.
J.
Authorization of the private road betterment petition does not relieve
the private owners from obtaining all necessary permits and approvals
for the road work.
K.
The repairs allowed hereunder shall be considered and are permissible
within the meaning of MGL c. 40, § 6N.
L.
The Director of Public Works may, at their discretion, direct Town
employees to make minor or temporary repairs on private roads under
the purview of maintenance activities or unusual circumstances. These
repairs shall not include construction, reconstruction and/or resurfacing
of the ways.
