THE LAYING OUT, ALTERATION, RELOCATION AND DISCONTINUANCE OF PUBLIC WAYS, AND SPECIFIC REPAIRS THEREON

M.G.L. pt. Part I, tit. Title XIV, ch. c. 82

in effect

M.G.L. c. 82, § 1 Jurisdiction; notice; hearings

c. 82, § 1. Jurisdiction; notice; hearings Section 1. County commissioners, councils of governments, or other duly authorized councils, committees or boards, in this chapter called county commissioners, in their respective jurisdictions may lay out, alter, relocate, order specific repairs, discontinue and discontinue maintenance of county highways or roads in the manner herein provided, unless other provision is made by law. A council of governments shall have the authority to designate the powers of the council with relation to county roads to a subgroup of the council, duly constituted under its charter. In counties abolished under chapter 34B or by section 567 of chapter 151 of the acts of 1996 where no council of governments exists, the designated regional planning agency shall create a regional adjudicatory board, comprised of 4 members of the regional planning agency advisory board and the administrator for highways in the Massachusetts Department of Transportation or his designee, to act as county commissioners under this chapter. County roads in Berkshire county shall be exempt from the foregoing provisions and shall be subject to section 364 of chapter 159 of the acts of 2000. County commissioners may enter into agreements with any petitioner to indemnify themselves from payment of damages or other claims related to this chapter. The agreements shall have the force of law. Sections 1 to 13, inclusive, shall apply to a city council or aldermen when authorized by city charters to lay out, alter, relocate, order specific repairs, discontinue or discontinue maintenance of highways, so far as applicable, and any hearing under said sections required to be held before a city council or board of aldermen so authorized may be held before a duly authorized committee thereof. Notwithstanding any other provision of this chapter, no municipality shall layout, alter, relocate, discontinue or discontinue maintenance of an existing way at its point of connection, or within five hundred yards of its point of connection, with an adjoining municipality which excludes motor vehicle traffic from the way until and unless (a) the city, town or county initiating such layout, alteration, relocation, discontinuance or discontinuance of maintenance gives written notice of such action to the chief executive officer of abutting city, town, or county into which the said way extends, and (b) a public hearing is held by the city, town or county initiating such layout, alteration, relocation, discontinuance or discontinuance of maintenance, public notice of which must be published for each of the two weeks preceding such hearing in a newspaper of general circulation in the abutting city, town or county into which the said way extends, and (c) the chief executive officer of such abutting city, town or county concurs in writing, in such layout, alteration, relocation, discontinuance or discontinuance of maintenance. If within ninety days of the date of such hearing required by this section there is no concurrence by the abutting city, town or county into which the said way extends, the initiating city, town or county may make a written request to the administrator for highways in the Massachusetts Department of Transportation to approve of the said layout, alteration, relocation, discontinuance or discontinuance of maintenance. If the said administrator so approves, the said layout, alteration, relocation, discontinuance or discontinuance of maintenance shall take effect and be valid without the concurrence of the abutting city, town or county into which the said way extends. This paragraph shall apply to towns or cities notifying and receiving concurrence from abutting towns or cities in the case of town roads; or counties, councils of governments, or regional adjudicatory boards notifying and receiving concurrence from abutting counties, councils of governments, or regional adjudicatory boards in the case of county roads.

M.G.L. c. 82, § 2 Petition; recognizance

c. 82, § 2. Petition; recognizance Section 2. If common convenience and necessity require a new highway from town to town or from place to place within the same town, or the alteration, relocation, specific repair, discontinuance or discontinuance of maintenance of an existing highway, application therefor shall be made, by petition in writing, to the county commissioners having jurisdiction thereof. The petitioners shall, if so required by the county commissioners, before any action is taken upon such petition, cause a sufficient recognizance to be given to the jurisdiction, with surety to the satisfaction of the commissioners, for the payment of all costs and expenses to the jurisdiction which shall arise by reason of the proceedings on such petition, if the petitioners do not prevail.

M.G.L. c. 82, § 3 Notice of proposed taking and view or hearing; publication

c. 82, § 3. Notice of proposed taking and view or hearing; publication Section 3. Fifteen days at least before the time appointed for a view or hearing, the commissioners shall cause notice of the time and place appointed therefor and a copy of such petition to be served upon the clerk of every town wherein such new highway, alteration, relocation, specific repair, discontinuance or discontinuance of maintenance is prayed for and in the event a plan has been prepared for such new highway, alteration, relocation, specific repair, discontinuance or discontinuance of maintenance the commissioners shall, at least seven days before the date for such hearing or view, mail to the recorded owners of land, subject to a taking because of such new highway alteration, relocation, specific repair, discontinuance or discontinuance of maintenance a notice of the proposed taking and the time and place of such view or hearing. In the event a plan has not been prepared prior to such hearing or view then at least seven days before the final approval of plans for such new highway, alteration, relocation, specific repair, discontinuance or discontinuance of maintenance the commissioners shall provide a hearing for the recorded owners of land subject to taking and mail them notice of such hearing at least seven days before the date set for such hearing. Seven days at least before the time appointed for such view or hearing, they shall cause notice of the time and place appointed therefor to be mailed to each person whose land may be subject to a taking for such purpose, and such notice shall inform such land owner of the proposed taking. They shall also cause copies of the petition, or abstracts thereof, and of the notice, to be posted in two public places in each of said towns and to be published in such newspaper as they shall order; the posting and the last publication to be seven days at least before any view, hearing or adjudication on such petition.

M.G.L. c. 82, § 4 View of premises; adjudication

c. 82, § 4. View of premises; adjudication Section 4. They shall view the premises if they consider it expedient or if requested by any party interested; and shall hear the parties, either at the time of the view, at a regular or special meeting or at an adjournment thereof, as they determine; and as soon as may be after the hearing, they shall determine whether the laying out, altering, relocating, specific repairing, discontinuing or discontinuing maintenance of such highway is required by the common convenience and necessity. If they adjudicate that the action prayed for is not required by common convenience and necessity, the petition shall be dismissed; otherwise they shall proceed in the manner prescribed in section five.

M.G.L. c. 82, § 5 Procedure on objections to proposal

c. 82, § 5. Procedure on objections to proposal Section 5. If at the time of the view or hearing as provided in section three when a plan has been prepared no person interested objects, the commissioners may, within twelve months thereafter, lay out, alter, relocate, or order specific repairs upon such highway without further notice. If at such time any person interested objects, the commissioners shall not lay out, alter, relocate, or order specific repairs upon such highway without another hearing, at which any party interested may be heard with respect to the manner in which the proposed improvement shall be carried out. Notice of such hearing shall be given in the manner prescribed in section three. If at the time of a view upon a petition for discontinuing or discontinuing maintenance of a highway, the commissioners decide that it ought to be discontinued or no longer maintained, they may at the same time adjudge that it be discontinued or no longer maintained, without a further or subsequent meeting therefor; and if a return of said proceedings and adjudication is made and accepted at the next regular meeting of the commissioners, it shall be a discontinuance or discontinuance of maintenance of such highway. The commissioners may adjudicate and decree in respect to a portion of a way described in a petition pending before them, leaving the petition open pending a further or final adjudication and decree in respect to a further portion of said way or a final adjudication and decree as to the remainder of such way. Upon petition of a town or city, the commissioners may discontinue a county highway and thereafter the way or section of way so discontinued shall be a town way. Unless so petitioned, the discontinued way shall no longer be a public way.

M.G.L. c. 82, § 6 Changes between termini; establishment of building lines

c. 82, § 6. Changes between termini; establishment of building lines Section 6. They may make such changes between the termini of the highway described in the petition, relative to the direction and course of such highway or to the alteration, specific repair or discontinuance thereof, as in their opinion the public convenience requires, and, in connection with the laying out, alteration or relocation thereof, may establish a building line not more than forty feet distant from the exterior line of such highway, extending for such distance from points where such highway joins an intersecting way, as defined in section one of chapter ninety, as may be necessary to insure the safety of the public, and thereafter no structures shall be erected or maintained between such building line and such highway except steps, windows, porticos, other usual projections appurtenant to the front wall of a building, embankments, walls, fences and gates, to the extent prescribed by the order establishing such building line. A building line so established may be discontinued in the manner provided for the discontinuance of a highway.

M.G.L. c. 82, § 7 Taking land or easement by eminent domain; damages

c. 82, § 7. Taking land or easement by eminent domain; damages Section 7. If it is necessary, for the purpose of laying out, altering or relocating a highway, or establishing a building line in connection therewith, to acquire land, or an easement or right therein, the commissioners shall, at the same time that the highway is laid out, altered or relocated, take such land, easement or right by eminent domain under chapter seventy-nine. Any person sustaining damage in his property by the laying out, alteration, relocation, discontinuance or discontinuance of maintenance of a highway, or by specific repairs thereon, or by the establishment or discontinuance of a building line, shall be entitled to recover the same under said chapter. If no entry has been made upon land taken for highway purposes, or if the location has for any other cause become void, or if specific repairs which have been ordered are not made, a person who has suffered loss or been put to expense by the proceedings shall be entitled to recover indemnity therefor under said chapter.

M.G.L. c. 82, § 8 Construction requirements; payment of expenses

c. 82, § 8. Construction requirements; payment of expenses Section 8. The commissioners, in their return, shall determine and specify the manner in which a new highway shall be laid out or an existing one altered, relocated or specifically repaired, and may specify in sufficient detail the work required so that the same may be completed in accordance with the commissioners' directions, and the time within which it shall be completed, and each town shall perform the work so required within its limits unless other provision is made. They may apportion the expense thereof upon the county and towns, respectively, or they may agree with the towns in which the highway is located or with the department of highways, or both, as to the apportionment of such expense to be paid by the towns, county or state, respectively. The selectmen or mayor shall give notice to said commissioners of the time when the work ordered is begun if so required in the return, and the commissioners or their agents may examine the work as often as may be necessary during its progress to ascertain that it is well done according to the direction of the commissioners, and, in case the town does not perform the work to the acceptance of said commissioners, the provisions of sections fourteen and fifteen shall apply. The commissioners shall transmit to the clerk of each town in which the highway lies a description and plan of the location and bounds thereof within the limits of such towns respectively, which description shall be recorded within ten days by the clerk in a book kept for that purpose.

M.G.L. c. 82, § 9 Culverts and cattle passes

c. 82, § 9. Culverts and cattle passes Section 9. If the commissioners require a culvert, cattle pass or other passageway to be made under a highway, they may order the town to construct the same as a part of the highway, and may order the whole or any part of the expense to be paid by the county.

M.G.L. c. 82, § 10 Specific repair of ways

c. 82, § 10. Specific repair of ways Section 10. If, upon a petition for the laying out or alteration of a highway, the commissioners, after a view and hearing, are of the opinion that the existing highway between the termini mentioned in the petition can be so far amended as to supersede the necessity of laying out a new highway or of altering the location of existing ways, they may, after notice to the towns interested, direct specific repairs to be made in the existing ways in such manner as the public convenience may require; and may apportion the expense thereof upon the county and towns respectively as in laying out highways. At the time of ordering specific repairs upon a highway, they may direct it to be closed for public travel for a reasonable time. Towns in which specific repairs are ordered shall make them. Nothing in this chapter with respect to commissioners' orders for specific repairs shall relieve towns from their duties and liabilities with respect to keeping public ways in repair.

M.G.L. c. 82, § 11 Relocation

c. 82, § 11. Relocation Section 11. If application is made to the commissioners by a town, or by five inhabitants thereof, to relocate or order specific repairs on a way within such town, whether it was laid out by authority of the town or otherwise, they may, either for the purpose of establishing the boundary lines of such way or of making alterations in the course or width thereof, or of making specific repairs thereon, relocate it in the manner prescribed for laying out highways in sections two to nine, inclusive. The expense shall be assessed upon the petitioners or upon the county or town, or upon the land benefited by the improvement under chapter eighty, as the commissioners may order. The commissioners may, without petition, after giving notice as provided in section three, relocate any public way for the purpose of establishing its boundaries, or of making specific repairs thereon, in which case no part of the expense shall be assessed upon the town. The commissioners may adjudicate and decree in respect to a portion of a way described in a petition pending before them, leaving the petition open pending a further or final adjudication and decree in respect to a further portion of said way or a final adjudication and decree as to the remainder of such way.

M.G.L. c. 82, § 11A Entry upon private lands for purpose of reconnaissances, surveys, soundings, inspections and examinations

c. 82, § 11A. Entry upon private lands for purpose of reconnaissances, surveys, soundings, inspections and examinations Section 11A. Whenever the commissioners or their authorized agents deem it necessary to make reconnaissances, surveys, soundings, inspections or examinations to obtain information for the layout and construction of highways or other projects under their jurisdiction, said commissioners or their authorized agents or employees may, after due notice by registered mail, given by the commissioners or their authorized agents, enter upon such lands, waters and premises, not including buildings, in their respective counties as they may deem necessary or convenient for the purposes of this chapter, and such entry shall not be deemed a trespass nor shall an entry for such purposes be deemed an entry under eminent domain proceedings. The county shall make reimbursement for any injury or actual damage to such lands, waters and premises caused by any act of the authorized agents or employees, and shall so far as possible restore such lands to the condition in which they were prior to making such entry. Such reimbursement shall be assessed upon the respective towns within which said areas have been entered upon.

M.G.L. c. 82, § 12 Payment of damages and costs of construction

c. 82, § 12. Payment of damages and costs of construction Section 12. When a highway has been finally laid out, altered, relocated, discontinued or maintenance discontinued, or when specific repairs are ordered on an existing highway by the county commissioners, the county shall be primarily liable for all damages thereby caused, or for all amounts awarded or assessed as indemnity. The commissioners shall determine what proportion if any of the expenses of the proceedings, cost of construction, damages and indemnity shall be assessed upon the land benefited under chapter eighty and whether the remainder, if any, shall be borne by the county, or by the towns in which the parts of the highway are respectively located. The commissioners shall notify each such town of any balance due from such town to the county under this section and may enforce payment as provided in section fifteen.

M.G.L. c. 82, § 13 Payment of expenses of rejected petitions

c. 82, § 13. Payment of expenses of rejected petitions Section 13. If a highway is not finally laid out, relocated, altered, discontinued or maintenance discontinued, or if specific repairs are not ordered, the expenses of the proceedings shall be paid by the persons who have recognized therefor. If they refuse or neglect, when required by the commissioners, to pay such expenses, such expenses or costs shall be paid by the county; and thereupon the commissioners may collect the same from the persons who so recognized, as provided by section eighteen of chapter thirty-four.

M.G.L. c. 82, § 14 Failure by municipalities to construct highways laid out by commissioners

c. 82, § 14. Failure by municipalities to construct highways laid out by commissioners Section 14. If, after a highway has been laid out by the commissioners, a city or town whose duty it is to make such highway, or a part thereof, does not make and complete the same within the time and in the manner prescribed and to the acceptance of the commissioners, they may forthwith cause such highway to be completed as aforesaid, and shall direct the expenses and charges of completing the same to be paid by the county and shall order notice thereof to be given to each delinquent city or town, stating the proportion which it is to pay.

M.G.L. c. 82, § 15 Remedy against delinquent municipalities

c. 82, § 15. Remedy against delinquent municipalities Section 15. If a delinquent city or town does not pay its proportion of such expenses and charges within sixty days after the date of said notice, with interest thereon at the rate of ten per cent a year from the time when the same is paid by the county, the commissioners may, after a hearing, issue a warrant against such city or town for the amount which it was ordered to pay, with interest and the further costs of such notice and warrant, which shall be collected and paid into the county treasury.

M.G.L. c. 82, § 16 Payment of county's share of expense

c. 82, § 16. Payment of county's share of expense Section 16. When a highway which has been laid out, specifically repaired, relocated or altered, is completed, in whole or in part, the commissioners shall view and carefully examine it throughout, and if they find that it has been well made according to their directions, they shall order the proportion of the expense for which the county is liable under section twelve or which has been assessed upon the land benefited to be paid by the county. Said commissioners, before work ordered by them is wholly completed, may pay to the city or town such proportion of the county's share of the expense as they determine, having regard to the amount of work done and the proportion of the expense which they have determined the county shall pay.

M.G.L. c. 82, § 17 Jurisdiction

c. 82, § 17. Jurisdiction Section 17. The city council of a city and the selectmen or road commissioners of a town may exercise original jurisdiction, concurrent with the county commissioners, of petitions for altering, relocating or making specific repairs upon a highway within the town limits, but except as to such parts thereof as, by such action, become unnecessary for public use, a city or town shall not discontinue any highway or diminish the width thereof, nor shall it assess upon the county any part of the expense of altering, relocating or repairing. The proceedings of cities and towns and their officers hereunder shall be the same as in the laying out of highways or town ways. Nothing in sections seventeen to nineteen, inclusive, shall diminish the powers over highways granted to a city by its charter.

M.G.L. c. 82, § 18 Notice to county commissioners of final action on petitions

c. 82, § 18. Notice to county commissioners of final action on petitions Section 18. Within two weeks after final action relative to the alteration or relocation of a highway or making specific repairs thereon, under the preceding section, the town clerk shall send a certified copy of the record of such final action to the county commissioners, who shall enter it upon their records.

M.G.L. c. 82, § 19 Appeal to county commissioners

c. 82, § 19. Appeal to county commissioners Section 19. An appeal may be taken to the county commissioners from any action under the two preceding sections, and they shall thereupon give a public hearing, with not less than fourteen days' notice thereof, in the manner required in the laying out of highways or town ways and also by publishing in a newspaper a copy of the notice not less than seven days before the hearing. At such hearing the county commissioners may finally decide such appeal.

M.G.L. c. 82, § 20 Applicability to railroad crossings

c. 82, § 20. Applicability to railroad crossings Section 20. The three preceding sections shall not affect sections fifty-nine to eighty-two, inclusive, of chapter one hundred and fifty-nine, and sections ninety-five to one hundred and fourteen, inclusive, and section two hundred and fifty-two of chapter one hundred and sixty, relative to railroad corporations and street railway companies.

M.G.L. c. 82, § 21 Authority to lay out ways

c. 82, § 21. Authority to lay out ways Section 21. The selectmen or road commissioners of a town or city council of a city may lay out, relocate or alter town ways, for the use of the town or city, and private ways for the use of one or more of the inhabitants thereof; or they may order specific repairs to be made upon such ways; and a town, at a meeting, or the city council of a city, may discontinue a town way or a private way.

M.G.L. c. 82, § 22 Notice of intention

c. 82, § 22. Notice of intention Section 22. Seven days at least prior to the laying out, relocation or alteration of a town way or private way a written notice of the intention of the selectmen or road commissioners of the town to lay out, relocate or alter the same shall be left by them, at the usual place of abode of the owners of the land which will be taken for such purpose, or delivered to such owner in person or to his tenant or authorized agent. If the owner has no such place of abode in the town and no tenant or authorized agent therein known to the selectmen or if, being a resident in the town, he is not known as such to the selectmen or road commissioners, such notice shall be posted in a public place in the town seven days at least before the laying out, relocation or alteration of such way. This section shall not apply to cities.

M.G.L. c. 82, § 23 Filing and acceptance of plan

c. 82, § 23. Filing and acceptance of plan Section 23. No town way or private way which has been laid out, relocated or altered by the selectmen or road commissioners shall, except as hereinafter provided, be established until such laying out, relocation or alteration, with the boundaries and measurements of the way, is filed in the office of the town clerk and, not less than seven days thereafter, is accepted by the town at a town meeting. This section shall not apply to cities.

M.G.L. c. 82, § 24 Taking by eminent domain; damages

c. 82, § 24. Taking by eminent domain; damages Section 24. If it is necessary to acquire land for the purposes of a town way or private way which is laid out, altered or relocated by the selectmen, road commissioners or other officers of a town under this chapter, such officers shall, within one hundred and twenty days after the termination of the town meeting at which the laying out, alteration or relocation of such town way or private way is accepted by the town, acquire such land by purchase or otherwise, or adopt an order for the taking of such land by eminent domain under chapter seventy-nine or institute proceedings for such taking under chapter eighty A. Any person sustaining damage in his property by the laying out, alteration or relocation of a town way or private way shall be entitled to recover the same under said chapter seventy-nine, unless such damage was sustained in connection with a taking made in proceedings instituted under said chapter eighty A, and any person sustaining damage in his property by the discontinuance of a town way or private way or by specific repairs thereon shall be entitled to recover the same under said chapter seventy-nine. If no entry has been made upon land taken under said chapter seventy-nine for the purpose of a town way, or if the location has for any other cause become void, a person who has suffered loss or been put to expense by the proceedings shall be entitled to recover indemnity therefor under said chapter seventy-nine. If a private way is laid out, relocated, altered or discontinued by a town, or if a town makes specific repairs thereon, or if a town way is discontinued, the persons upon whose application such way is laid out, relocated, altered or discontinued or upon whose application specific repairs are made thereon shall, before such way is entered upon for the purposes of construction, or is closed up, give such town security satisfactory to the selectmen that they will indemnify such town for all damages and charges which it is obliged to pay by reason thereof, and all such damages and charges shall be repaid to the town by the persons making such application; provided, however, that in case of the discontinuance of a town way the selectmen may order a part of the damages to be paid by the town. The first sentence of this section shall not apply to cities.

M.G.L. c. 82, § 25 Sewers and pipes

c. 82, § 25. Sewers and pipes Section 25. In a town which accepts the provisions of this section or has accepted corresponding provisions of earlier laws, the selectmen, road commissioners or sewer commissioners may, when a town way is laid out, relocated or altered, enter and lay sewers and water pipes therein before possession is taken for the purpose of constructing such way, in like manner as if it had been actually constructed. Such entry shall not be deemed an entry for the purpose of constructing the way, and until such way has been constructed, sewer assessments shall be levied only upon the estates of persons connecting their drains with such sewers. If such laying out, relocation or alteration becomes void under the provisions of section three of chapter seventy-nine, all sewers or water pipes so laid therein shall be deemed to have been legally laid and placed therein; and damages may be recovered therefor under chapter seventy-nine; and the right to recover the same shall accrue when such laying out, alteration or widening becomes void. This section shall not apply to cities.

M.G.L. c. 82, § 28 Completion of way by county commissioners

c. 82, § 28. Completion of way by county commissioners Section 28. If a town in which a town way or private way has been laid out, relocated, altered or approved in pursuance of the two preceding sections does not make and complete the same in the manner prescribed by the county commissioners, and to their satisfaction, within six months after it has been laid out, relocated, altered or approved, or within the time directed by them, they shall, forthwith, cause such way to be completed, and the expenses, interest and charges thereof shall be determined and paid in the manner provided in sections fourteen and fifteen.

M.G.L. c. 82, § 29 Private ways; laying out, relocation or alteration by commissioners

c. 82, § 29. Private ways; laying out, relocation or alteration by commissioners Section 29. If the laying out, relocation or alteration of a private way is desired in a town for the use of one or more persons who are not inhabitants thereof, or if the laying out, relocation or alteration of a private way lying partly in one town and partly in another is desired, the county commissioners may cause such way to be laid out, relocated or altered, in the manner provided in section twenty-six.

M.G.L. c. 82, § 30 Discontinuance by commissioners

c. 82, § 30. Discontinuance by commissioners Section 30. Upon the application in writing of a person aggrieved by the refusal of a town to discontinue a town way or private way, the county commissioners may order such way to be discontinued. If a town way has been laid out, relocated or altered by the county commissioners, it shall not within two years thereafter be discontinued, relocated or altered by the town; and if such way has been discontinued by the county commissioners, the town shall not within two years thereafter lay out the same again.

M.G.L. c. 82, § 31 Costs for hearing petitions; recognizance

c. 82, § 31. Costs for hearing petitions; recognizance Section 31. If an application is made to the county commissioners under sections twenty-six, twenty-seven, twenty-nine or thirty, they may cause a recognizance to be given to the county such as is required in applications for highways; and like proceedings may be had on such recognizance. They shall also cause notice to be given, before they proceed to view or to hear the parties, as in the case of highways.

M.G.L. c. 82, § 32 Report of laid out, relocated or altered roads; recordation

c. 82, § 32. Report of laid out, relocated or altered roads; recordation Section 32. When a town way or private way is laid out, relocated or altered by the selectmen or road commissioners or by the county commissioners, they shall in their report or return thereof specify the manner in which such way is laid out, relocated or altered and shall transmit to the town clerk a description of the location and bounds thereof, which shall within ten days be recorded by him in a book kept for that purpose; and no town shall contest the legality of a way laid out by it and accepted and recorded as provided in this chapter. Sections twenty-six to thirty-two, inclusive, shall apply to cities.

M.G.L. c. 82, § 32A Abandonment of municipal ways

c. 82, § 32A. Abandonment of municipal ways Section 32A. The board or officers of a city or town having charge of a public way may, after holding a public hearing, notice of which shall be sent by registered mail, return receipt requested, to all property owners abutting an affected road and notice of which shall be published in a newspaper of general circulation in the city or town once in each of two successive weeks, the first publication to be not less than fourteen days before the day of the hearing and by posting in a conspicuous place in the office of the city or town clerk for a period of not less than fourteen days before the day of the hearing, upon finding that a city or town way or public way has become abandoned and unused for ordinary travel and that the common convenience and necessity no longer requires said town way or public way to be maintained in a condition reasonably safe and convenient for travel, shall declare that the city or town shall no longer be bound to keep such way or public way in repair and upon filing of such declaration with the city or town clerk such declaration shall take effect, provided that sufficient notice to warn the public that the way is no longer maintained is posted at both ends of such way or public way, or portions thereof. Upon petition in writing of the board or officers of a city or town in which a county highway is located, the county commissioners, whenever common convenience and necessity no longer require such way to be maintained in a condition reasonably safe and convenient for public travel, after giving notice in the manner prescribed in section 3, and after viewing the premises and hearing the interested parties in the manner prescribed in section 4, may adjudicate that the town shall no longer be bound to keep the way in repair, and thereupon the adjudication shall take effect; provided, that sufficient notice to warn the public that the way is no longer maintained is posted at both ends of the way, or portions thereof.

M.G.L. c. 82, § 32B Taking slope easement to protect ways

c. 82, § 32B. Taking slope easement to protect ways Section 32B. Wherever in this chapter or in any city charter a board of officers is authorized to take land by eminent domain under chapter seventy-nine, in connection with the laying out, widening, altering or relocating of a public way, such board of officers shall be authorized to take an easement in land adjoining the location of the public way consisting of a right to have the land of the location protected by having the surface of such adjoining land slope from the boundary of the location.

M.G.L. c. 82, § 32C Easements for erection of snow fences

c. 82, § 32C. Easements for erection of snow fences Section 32C. A city or town may purchase, receive, or take by eminent domain easements or other rights or interests in land adjacent to a public way for the purpose of erecting and maintaining snow fences, so-called, thereon; provided, however, that such snow fences shall not be erected prior to November first of each year and shall be removed by May first of the next ensuing year. A taking of any interest in land by eminent domain under this section shall be deemed a taking for highway purposes under section five B of chapter seventy-nine.

M.G.L. c. 82, § 33 Footways

c. 82, § 33. Footways Section 33. Cities and towns may lay out footways for the use of the public in the manner provided for the laying out of town ways.

M.G.L. c. 82, § 34 Reserved spaces along ways; rights of pedestrians injured by streetcars

c. 82, § 34. Reserved spaces along ways; rights of pedestrians injured by streetcars Section 34. If the city council of a city, or a town, accepts this section or has accepted the corresponding provisions of earlier laws, the board or officers authorized to lay out highways or town ways may reserve spaces between the side lines thereof for the use of horseback riders, for bicycle paths or for street railways, except such as may be operated by steam, for drains, sewers and electric wires, for trees and grass, and for planting. A pedestrian who is injured by a street railway car within or upon any of the spaces so reserved for street railways shall have the rights of a traveler on the highway.

M.G.L. c. 82, § 35 Bicycle paths

c. 82, § 35. Bicycle paths Section 35. The board or officers authorized to lay out highways or town ways may lay out, construct and maintain bicycle paths under the provisions of law relative to the laying out, construction and maintenance of public ways.

M.G.L. c. 82, § 35A Laws relative to public ways; definition

c. 82, § 35A. Laws relative to public ways; definition Section 35A. The board or officers authorized to lay out highways or town ways may lay out, construct and maintain rail trails under the laws relative to the laying out, construction and maintenance of public ways. For purposes of this section, a rail trail shall mean property converted from the former use as a railroad right-of-way to a use as a publicly-owned, improved and maintained corridor for bicycle, pedestrian and other non-motorized public transportation, recreation and associated purposes. Rail trails may be laid out on property a city or town has acquired by fee, easement, lease, license or otherwise and may be subject to a reversion allowing the railroad company or authority to reclaim the property for rail purposes upon written notice. The owner of such reversion shall be exempt from liability for any claims associated with use of any such rail trail including claims for damages that may arise under section 15 of chapter 84 and section 38 of chapter 161A.

M.G.L. c. 82, § 36 Penalty for misuse of bicycle paths

c. 82, § 36. Penalty for misuse of bicycle paths Section 36. Whoever trespasses upon bicycle paths named in the two preceding sections by driving thereon with a horse or other animal, except to cross the same, shall be punished by a fine of not more than twenty dollars; but the aldermen or selectmen may prescribe limits within which this section shall not apply.

M.G.L. c. 82, § 37 Building lines

c. 82, § 37. Building lines Section 37. If a city by its city council or a town accepts this section or has accepted corresponding provisions of earlier laws, a building line not more than forty feet distant from the exterior line of a highway or town way may be established in the manner provided for laying out ways, and thereafter no structures shall be erected or maintained between such building line and such way, except steps, windows, porticos, other usual projections appurtenant to the front wall of a building, embankments, walls, fences and gates, to the extent prescribed in the vote establishing such building line, and except that any structure existing at the time of the establishment of the building line may be permitted to remain and to be maintained to such extent and under such conditions as may be prescribed in the vote establishing such building line. Whoever sustains damage thereby may recover the same under chapter seventy-nine. A building line established under this section may be discontinued in the manner provided for the discontinuance of a highway or town way. Whoever sustains damages by the discontinuance of a building line may recover the same under chapter seventy-nine.

M.G.L. c. 82, § 38 Acquisition of land for road materials

c. 82, § 38. Acquisition of land for road materials Section 38. The county commissioners, aldermen or selectmen or road commissioners may purchase or select and lay out land within their respective counties, cities or towns, not appropriated to public uses or owned by any other town, from which may be taken materials necessary for the construction, repair or improvement of public ways; and may lay out such ways as they consider necessary for convenient access thereto. All proceedings relative to such land and ways shall be the same as are provided in the laying out of other ways, and if it is necessary to acquire land for the purposes of this section, the same may be taken by eminent domain under chapter seventy-nine.

M.G.L. c. 82, § 39 Commencement of proceedings

c. 82, § 39. Commencement of proceedings Section 39. Petitions to the county commissioners relative to highways and town ways may be filed with and the recognizance taken by the clerk of said commissioners, and such filing shall be the commencement of proceedings.

M.G.L. c. 82, § 40 Definitions applicable to Secs. 40A to 40E

c. 82, § 40. Definitions applicable to Secs. 40A to 40E Section 40. The following words, as used in this section and sections 40A to 40E, inclusive, shall have the following meanings:— ''Company'', natural gas pipeline company, petroleum or petroleum products pipeline company, public utility company, cable television company, municipal traffic signal department, and municipal utility company or department that supply gas, electricity, telephone, communication or cable television services or private water companies within the city or town where such excavation is to be made. ''Description of excavation location'', such description shall include the name of the city or town, street, way, or route number where appropriate, the name of the streets at the nearest intersection to the excavation, the number of the buildings closest to the excavation or any other description, including landmarks, utility pole numbers or other information which will accurately define the location of the excavation. ''Emergency'', a condition in which the safety of the public is in imminent danger, such as a threat to life or health or where immediate correction is required to maintain or restore essential public utility service. ''Excavation'', an operation for the purpose of movement or removal of earth, rock or the materials in the ground including, but not limited to, digging, blasting, augering, backfilling, test boring, drilling, pile driving, grading, plowing in, hammering, pulling in, jacking in, trenching, tunneling and demolition of structures. ''Excavator'', any entity including, but not limited to, a person, partnership, joint venture, trust, corporation, association, public utility, company or state or local government body which performs excavation operations. ''Marking standards'', the methods by which a company designates its facilities in accordance with standards established by the Common Ground Alliance and the American Public Works Association. ''Non-mechanical means'', excavation using any device or tool manipulated by human power, including air vacuum, air blowing or similar methods of excavation designed to minimize direct contact with utilities. ''Premark'', to delineate the general scope of the excavation or boring on the paved surface of the ground using white paint, or stakes or other suitable white markings on nonpaved surfaces. No premarking shall be acceptable if such marks can reasonably interfere with traffic or pedestrian control or are misleading to the general public. Premarking shall not be required of any continuous excavation that is over 500 feet in length. ''Professional land surveyor'', a professional land surveyor as defined in section 81D of chapter 112. ''Safety zone'', a zone designated on the surface by the use of standard color-coded markings which contains the width of the facilities plus not more than 18 inches on each side. ''Standard color-coded markings'', red - electric power lines, cables, conduit or light cables; yellow - gas, oil, street petroleum, or other gaseous materials; orange - communications cables or conduit, alarm or signal lines; blue - water, irrigation and slurry lines; green - sewer and drain lines; white - premark of proposed excavation. ''System'', the underground plant damage prevention system as defined in section 76D of chapter 164.

M.G.L. c. 82, § 40A Excavations; notice

c. 82, § 40A. Excavations; notice Section 40A. No excavator installing a new facility or an addition to an existing facility or the relay or repair of an existing facility shall, except in an emergency, make an excavation, in any public or private way, any company right-of-way or easement or any public or privately owned land or way, unless at least 72 hours, exclusive of Saturdays, Sundays and legal holidays but not more than 30 days before the proposed excavation is to be made, such excavator has premarked not more than 500 feet of the proposed excavation and given an initial notice to the system. Such initial notice shall set forth a description of the excavation location in the manner as herein defined. In addition, such initial notice shall indicate whether any such excavation will involve blasting and, if so, the date and the location at which such blasting is to occur. Any professional land surveyor working on a preliminary design for a new facility or renovation where excavation is necessary shall: (i) premark the proposed excavation; and (ii) provide initial notice to the system. The notice requirements shall be waived in an emergency as defined herein; provided, however, that before such excavation begins or during a life-threatening emergency, notification shall be given to the system and the initial point of boring or excavation shall be premarked. The excavator shall ensure that the underground facilities of the utilities in the area of such excavation shall not be damaged or jeopardized. In no event shall any excavation by blasting take place unless notice thereof, either in the initial notice or a subsequent notice accurately specifying the date and location of such blasting shall have been given and received at least 72 hours in advance, except in the case of an unanticipated obstruction requiring blasting when such notice shall be not less than four hours prior to such blasting. If any such notice cannot be given as aforesaid because of an emergency requiring blasting, it shall be given as soon as may be practicable but before any explosives are discharged.

M.G.L. c. 82, § 40B Designation of location of underground facilities

c. 82, § 40B. Designation of location of underground facilities Section 40B. Within 72 hours, exclusive of Saturdays, Sundays and legal holidays, from the time the initial notice is received by the system or at such time as the company and the excavator or professional land surveyor agree, such company shall respond to the initial notice or subsequent notice by designating the location of the underground facilities within 15 feet in any direction of the premarking so that the existing facilities are to be found within a safety zone. Such safety zone shall be so designated by the use of standard color-coded markings. The providing of such designation by the company shall constitute prima facie evidence of an exercise of reasonable precaution by the company as required by this section; provided, however, that in the event that the excavator or professional land surveyor has given notice as aforesaid at a location at which because of the length of excavation the company cannot reasonably designate the entire location of its facilities within such 72 hour period, then such excavator or professional land surveyor shall identify for the company that portion of the excavation which is to be first made and the company shall designate the location of its facilities in such portion within 72 hours and shall designate the location of its facilities in the remaining portion of the location within a reasonable time thereafter. When an emergency notification has been given to the system, the company shall make every attempt to designate its facilities as promptly as possible. A company shall conduct periodic audits to ensure: (i) the accuracy of the designated location and marking of its facilities; and (ii) its adherence to marking standards.

M.G.L. c. 82, § 40C Excavator's responsibility to maintain designation markings; damage caused by excavator

c. 82, § 40C. Excavator's responsibility to maintain designation markings; damage caused by excavator Section 40C. After a company has designated the location of its facilities at the location in accordance with section 40B, the excavator shall be responsible for maintaining the designation markings at such locations, unless such excavator requests remarking at the location due to the obliteration, destruction or other removal of such markings. The company shall then remark such location within 24 hours following receipt of such request. When excavating in close proximity to the underground facilities of any company when such facilities are to be exposed, non-mechanical means shall be employed, as necessary, to avoid damage in locating such facility and any further excavation shall be performed employing reasonable precautions to avoid damage to any underground facilities including, but not limited to, any substantial weakening of structural or lateral support of such facilities, penetration or destruction of any pipe, main, wire or conduit or the protective coating thereof, or damage to any pipe, main, wire or conduit. If any damage to such pipe, main, wire or conduit or its protective coating occurs, the company shall be notified immediately by the excavator responsible for causing such damage. The making of an excavation without providing the notice required by section 40A with respect to any proposed excavation which results in any damage to a pipe, main, wire or conduit, or its protective coating, shall be prima facie evidence in any legal or administrative proceeding that such damage was caused by the negligence of such person.

M.G.L. c. 82, § 40D Local laws requiring excavation permits; public ways

c. 82, § 40D. Local laws requiring excavation permits; public ways Section 40D. Nothing in this section shall affect or impair local ordinances or by-laws requiring a permit to be obtained before excavation in a public way or on private property; but notwithstanding any general or special law, ordinance or by-law to the contrary, to the extent that any permit issued under the provisions of the state building code or state fire code requires excavation by an excavator on a public way or on private property, the permit shall not be valid unless the excavator notifies the system as required pursuant to sections 40 and 40A, before the commencement of the excavation, and has complied with the permitting requirements of chapter 82A.

M.G.L. c. 82, § 40E Violations of Secs. 40A to 40E; punishment

c. 82, § 40E. Violations of Secs. 40A to 40E; punishment Section 40E. Any person or company found by the department of public utilities, after a hearing, to have violated any provision of sections 40A to 40E, inclusive, shall be fined $1,000 for the first offense and not less than $5,000 nor more than $10,000 for any subsequent offense within 12 consecutive months as set forth by the rules of said department; provided, however, that nothing herein shall be construed to require forfeiture of any penal sum by a state or local government body for violation of section 40A or 40C; and provided, further, that nothing herein shall be construed to require the forfeiture of any penal sum by a residential property owner for the failure to premark for an excavation on such person's residential property. The department of public utilities may require any person or company not in compliance with sections 40A to 40E, inclusive, to complete a ''Dig Safe'' training program in lieu of a fine for a first offense.

Source: Massachusetts General Court (malegislature.gov)URL: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter82Fetched: 10/20/2026