BYLAW AMENDMENT / BETTERMENT BYLAW REVISION 

Town will vote to amend Title III Article 3 of the Town Bylaws:  Repairs to Private Ways to revise the criteria, process, and other material terms for the approval and administration of repairs to private ways, including revising the number or percentage of abutters required for a betterment petition when representing an association, and increasing the required deposit before work can commence; or take any action related thereto.

Inserted at the request of the Town Manager

Voted (5-0). The Board engaged in a robust debate regarding the utility and impact of the change proposed in Section 6 (Assessment of costs) from requiring one-third deposit of the total estimated cost of the project to two-thirds. The Board considered the impact of this increased fee on residents and moved to amend the proposed language from two-thirds to fifty percent.  Further, the Board requested that the proposed amendment be further revised to clarify the last sentence in Section 5 to reflect abutters who had petitioned the Board. Finally, the Board moved to further amend the proposed changes by requesting that the permissibility of electronic petitions be incorporated into the amendment.

Finally, in an effort to provide background for the rationale behind this proposed change, Mr. Helmuth requested that a summary, as previously set forth in a memorandum prepared by Town Counsel and made available to the public, be included in the comment.  Accordingly, it is noted that in recent years, the increasing number of betterment petitions has made it difficult for the Town to provide the up-front costs that permits these projects to begin.  Further, the requirement for threshold amount of approvals required from petitioners who are members of a residential association, even when some members are not direct abutters to the planned project, has made it difficult to secure approval for a number of projects.  Therefore, changes in the bylaw to address these issues are sought by the proposed bylaw amendment.

The sections that the article seeks to amend Sections 4, 5 and 6.  The effect of the changes to Sections 4 and 5 would alter the requirements for petitioners from associations so that those in the association, or a group of private ways, need only secure approval from two-thirds of the total number of abutters to the project itself, rather than all those who are on the private ways within the association.  The proposed changes to Section 6 would change the required deposit from a petitioning group from one-third to two-thirds of the total estimated cost of the repair project, to be provided before any work begins.  An additional proposed change to Section 6 would make it so that the deposit requirement would not apply to repairs to private ways that are financed by the Town through an instrument of borrowing or debt issuance.

That the Town does and hereby amends Title III, Article 3 (“Repairs to Private Ways”) to revise the number or percentage of abutters required for a betterment petition when representing an association, by increasing the required deposit before work can commence and eliminating the deposit requirement for repairs to private ways when those repairs are financed by the Town through an instrument of borrowing or debt issuance, so that the amended bylaw reads in its entirety as follows:

ARTICLE 3

REPAIRS TO PRIVATE WAYS

Section 1.        Classification

The Town Engineer and the Director of Public Works upon request of the Select Board acting in its capacity as the Board of Public Works shall recommend the classification of private ways in the Town according to the state of their construction and repair. The Board may then adopt such classifications with any modifications it may deem appropriate.

Section 2.        Definition and Authorization

(ART. 20, ATM –05/04/92) (ART. 23, ATM – 04/28/04) (ART. 12, ATM –04/23/18)

A.    The private property owners abutting private ways are responsible for the maintenance of such ways, which must be maintained so that there are no defects to impede the safe passage of emergency vehicles. This bylaw provides a means by which the Town may assist in the maintenance of such ways, primarily by providing a mechanism for private way abutters to fund repairs known as a “betterment.”

B.     The Board may vote to direct the Town Manager to make temporary repairs to private ways at the request of the Director of Public Works as provided below. Temporary repairs shall be limited to the filling of potholes and temporary patching.

C.     The Board may authorize a temporary or extensive repairs to private ways by abutter petition for a betterment. Extensive repairs shall include, but not be limited to, skim coating, armor coating, drainage work, and grading of gravel roadways. For all extensive repairs the petitioners agree to enter into a contract with a private contractor to repair and pave the roadway forthwith.

Section 3.        Criteria

(ART. 35, ATM – 05/18/05; ART. 12, ATM 04/23/18)

1. Abutter Criteria

The Board shall in making its determination as to the advisability of making temporary or extensive repairs by abutter petition take into consideration the following factors:

1.      The accessibility of the properties on the private ways to emergency vehicles such as police, fire and rescue.

2.      The volume of traffic that utilizes the private way i.e. dead end as opposed to feeder or connecting streets.

3.      The percentage of abutters on the particular private way petitioning the Board for the repairs.

4.      The number of years that the way shall have been open to public use.

5.      Such other considerations that the Board deems appropriate.

6.      Public Safety.

2. Town Criteria

The Board may authorize temporary repairs at the request of the Town whenever the Director of Public Works so advises the Board that repairs are required to abate an immediate hazard caused by a defect necessary for the safe passage of public safety vehicles.

Section 4.        Petition

(ART. 12, ATM 04/23/18)

The Select Board shall consider any private way, group of private ways, or portion thereof for temporary or extensive repairs after having been petitioned to do so by at least two-thirds of the total number of abutting property owners on the Private Way who directly abut the portion to be considered for temporary or extensive repairs. The Town shall only be considered an abutter for the purposes of this section, and assessment of costs in Section “6,” to the extent a private way is substantially used by Town staff or the public for the specific purpose of utilizing an abutting Town parcel.

The Select Board may after careful consideration, elect to do the entire portion which was petitioned for, or a lesser portion, provided at least two-thirds of the abutting property owners on the lesser portion to be done are in favor of such action. The Select Board shall upon receipt of a petition with at least two-thirds of the abutters' signatures affixed thereto shall hold a public hearing on the advisability of ordering the repairs and the kind and extent thereof. All abutters shall be given written notice of the hearing not less than seven (7) days prior thereto.

Section 5.        Alternate Petition

Notwithstanding the provisions of Section 4 above, the Board may also consider a number of private ways for repair as a whole project when these private ways are ways where a majority of abutters are members of an association of abutters whose major purpose has been the maintenance and repair of those ways upon which these members' properties abut.

The Select Board may only consider these private ways to be repaired as a whole project when having been petitioned by two-thirds of the total number of abutters who abut all of the ways represented by the association. The Select Board upon receipt of such a petition shall hold a public hearing on the advisability of ordering the repairs and the kind and extent thereof. All of the abutters on all of the ways represented in the petition shall be given written notice of the hearing not less than seven days prior thereto.

Section 6.        Assessment of costs

(ART. 23, ATM – 04/28/04) (ART. 35, ATM – 05/18/05) (ART. 12, ATM 04/23/18)

The costs of all labor and materials and processing shall be assessed equally to all abutters on the private way, or portion thereof (except with respect to Town property as set forth in Section 4), or if the Select Board votes to order any repairs pursuant to a petition filed under Section 5 all the abutters on all the private ways to be repaired without regard to linear frontage.

A one-third fifty (50) percent deposit of the total estimated cost of the completion of the repair project shall be required before any work can be commenced. The deposit requirement shall not apply to petitions or alternate petitions for repairs to private ways to be financed by the Town through an instrument of borrowing or debt issuance. All remaining costs shall be apportioned, assessed and collected on a per-property basis pursuant to the procedures provided in Chapter 80 of the General Laws, the Betterment Act, including the placing of liens on the affected property and the collection of apportioned costs by means of property tax collection.

Any and all such deposits shall be deducted from the equalized share of the property owners actually paying.

Section 7.        Collection of Apportioned Share

(ART. 35, ATM – 05/18/05)

The Select Board before authorizing any repairs shall adopt a formal Betterment Order which shall require each abutter to pay their property's unpaid apportioned share of the repair cost over a five-year period to include interest at 5 percent or 2 percent above the cost (including Town oversight and administration costs) of any bond issued to fund the repair in question. The Assessors in conjunction with the Town Tax Collector will commit such amount to the respective abutter's property tax bill and the Engineering Division of the Public Works Department will cause same to be recorded at the Registry of Deeds so that same runs with the land.

Section 8.        Liability

(ART. 35, ATM – 05/18/05) (ART. 19, ATM – 05/04/92) (ART. 11, ATM 04/23/18)

There shall be a limitation of liability on the Town of Five Hundred ($500.00) Dollars for any damages arising from any negligent repair of the private way which shall include damage from surface water run-off.

No repair shall be commenced until all the petitioners have signed an agreement with the Town holding the Town harmless from any additional damages arising from any negligent repair and providing evidence of insurance to the satisfaction of the Town. However, nothing in this paragraph shall excuse the Town from damages to property caused by the Town or agents thereof, during the repair process.

Temporary repairs made at the request of the Director of Public Works necessary to abate an immediate hazard caused by a defect shall not be considered as maintenance of the private way, nor shall the way be considered a public way. The Town shall not be liable for any damage incurred by the defect, subsequent repair or failure to make repairs to private ways.

Section 9.        Effect of Electronic Record

Any petitions executed pursuant to this Article 3 may be executed electronically in accordance with applicable laws and shall be enforceable as if executed in writing.

Select Board Report