[Adopted 6-23-2008 STM by Art. 13, approved 10-1-2008]
The Select Board, under MGL c. 40 § 6N,
shall consider any private way or portion thereof which has been open
to public use for five or more years for temporary repairs to be performed
by the Town after having been petitioned to do so by at least 100%
of the owners of abutting property, based on one vote for each abutting
property and not the number of owners of a particular property. Petitions
must contain a statement that: "The undersigned agree to keep said
private way or portion thereof open to public use for the period of
years which is the life of the temporary repairs made pursuant to
this petition."
Excluded from the terms of this article are private ways created pursuant to the Subdivision Control Law, MGL c. 41, §§ 81K through 81GG, and Chapter 501, Subdivision of Land, of the Town Code.
Temporary repairs shall be made on a qualifying
private way only after the Select Board has determined that such repairs
are required by public convenience and necessity. The Select Board
may, after reviewing a petition, elect to have the Town perform temporary
repairs on the entire portion which was petitioned for, or a lesser
portion, provided that at least 100% of the abutting property owners
on the appropriate portion of the way are in favor of such action
and costs as assessed as per the assessment of costs.[1] In making its determination as to the public convenience,
necessity, and advisability of making temporary repairs, the Select
Board shall take into consideration the following factors:
Temporary repairs may include the surfacing
or resurfacing of a way, the installation and repair of drainage,
the filling of potholes, depressions, and ruts, temporary patches,
and/or grading.
The Town acting through its Select Board is
hereby authorized to assess betterments upon the owners of properties
that derive particular benefit or advantage from the making of such
repairs on any such private way. Such assessments shall be a sum equal,
in aggregate, to the total cost of such repairs, and in the case of
each such property, assessed in proportion to the frontage thereof
on such way, except as otherwise provided by the Select Board. The
provisions of MGL Chapter 80 relating to public improvements and assessments
therefor shall apply to repairs to private ways ordered to be made
under this article. Where the cost of temporary repairs is less than
$500 per abutting property, each owner shall pay the full amount of
his/her assessment to the Treasurer prior to the repairs being commenced.
Any abutter may, by paying the full amount of his/her share of the
assessment, avoid the assessment of betterment on his/her land.
The Town in making repairs under this article
shall not be liable on account of any damage caused by such repairs.
Said repairs shall not be undertaken unless the Select Board have
in its possession agreements executed by all abutting owners of the
affected area to release and save the Town harmless on account of
any damage whatever caused by such repairs. Such agreements to release
and save harmless shall be recorded in the Registry of Deeds and shall
be deemed to be covenants running with the land and shall be binding
upon all subsequent owners thereof.
No term or provision of the article, nor any
temporary repairs pursuant thereto, shall be interpreted or construed
to constitute acceptance by the Town of any duty, responsibility,
or liability for a private way or portion thereof or for the enforcement
of any private right of any petitioner or abutting owner.
