Photo: The roads in the Hillcrest neighborhood.
While filing out of the Board of Selectmen’s meeting Monday night, May 23, the consensus among the majority of homeowners from Belmont’s Hillcrest neighborhood of transforming their private roads into public ways was fairly succinct.
“It’s back to the drawing board,” said David Hurley, a Birch Hill Road homeowner who is a leader of the effort to transfer several roads – including Crestview Road, Evergreen Way, Longmeadow Road, Spring Valley Road, Stony Brook Road, and Woodfall Road to name a few – on the northwestern end of Belmont from private to public stewardship.
While the homeowners who live on the streets located on Belmont Hill and town officials agree that the increasingly worn and ragged roadways should come under local control – for safety and fairness reasons, said Hurley – a new impediment has been revealed which is a deal breaker for the town.
The potential of a big fat lawsuit.
In the opinion of the town’s legal representative, unless the group advocating the change can convince each of the approximate 180 property owners to go along with a deal, the threat of a renegade homeowner who feels cheated by the process could end up costing the town far more than any
“Anytime a government agency exercises the power of eminent domain, anyone who is dissatisfied with the amount … given for their property has a two-year period to file in Superior Court for a jury to determine the damages,” said George Hall, Belmont’s Town Counsel at the meeting that served as an update for an initial request from a neighborhood group back on March 14.
Hall said an aggrieved homeowner would not just be entitled to the fair market value of the property but also argue that the remaining land had been diminished in value.
And the risk of litigation is real, said Selectmen Chair Mark Paolillo, recalling a few years back a “simple” taking of land on Trapelo Road resulted in the town occurring more cost than it ever expected.
“My point of view is to trying and find a way forward, but the town will need to be protected itself from future litigation,” he said,
To avoid the risk, Hall is advising the Selectmen only to move forward with the plan in which each of the 181 homeowners signs off on the town taking their property – the roadway in front of their homes to the centerline of the road – and for what cost.
But so far, the group leading the charge has received the backing of three-quarters of Hillcrest homeowners.
Currently, about 69 percent of homeowners approve the private-to-public transfer, 10 percent – 18 households in total – are opposed, and 30 have not yet been contacted to turn over the streets maintenance and ownership to the town, said Hurley.
“It would really be difficult for us to ask town meeting to accept these roads as public ways with the threat of litigation out there,” said Paolillo.
The mandate for 100 percent was hardly what the residents wanted to hear.
“You’re putting us back to square one,” said Al Murphy of Longmeadow Road, who with Hurley has been leading the neighborhood initiative.
One solution broached by Selectman Jim Williams who suggested that some streets or stretches of roadways can be handed over to the town if those sections received unanimity for the overall plan.
Both sides spoke on the merits of adding the seven private roads into the fold.
“It’s a safety and a fairness issue,” said Hurley, who said the town already plows and patches the streets which are accessed by vehicles and pedestrians.
“If it were up to me there would be no private streets in town,” said Hurley, adding there are too many “gray areas” with private ways.
While the town would like to foster the transfer of the collective roads, it will only take possession of the streets after each has been repaired and passes town muster.
Town Administrator David Kale outlined one of two ways the residents can bring the streets up to standard; either the homeowners fix the streets out of pocket or accept a betterment process – a tax assessed on owners.
According to Hall, the betterment approach has lost favor in the past three decades since the passage of Prop. 2 1/2 in the early 1980s as communities has found it harder to find a ready pot of money to pay for the upfront repairs. The Office of Community Development has estimated the total cost of upgrading the roadways at $2.1 million.
It would ultimately be a vote by Town Meeting whether the town accepts the transfer.
When Hurley asked the board’s position if the town would accept the roads if they were repaved and repaired, the selectmen suggested a willingness to present such a deal to Town Meeting, but with one very large caveat.
While in favor of such a deal, “you still need 100 percent so you’re still stuck wth that,” said Paolillo.
Arlington has private roads all over town especially near Skyline park… Those road conditions are much worse than this street Belmont. The argument from the town that they don’t want to take on liability from unknown lawsuits is a valid one. The residents who bought there knew about the private road status.
Alan altshuler says
So, if the homeowners own the roads, can they shut them off from public access and traffic? I very much doubt it.
The town of course is responsible for this situation, having allowed a developer to build such substandard roads in the first place. Now the town is saying this situation must persist in perpetuity. Incredible.
What have other towns done? Are they all so paralyzed?
Franklin B. Tucker says
Here is an explanation of “private” roads under the law from the blog MaLawForum.com edited by Mark Bernardin, an attorney living in Massachusetts.
“… [T]he designation of a way as “private” should not be viewed as bestowing too broad a range of special rights and protections for the owners of the abutting properties along the private way.
The principle impact of a way being designated as private relates to who bears responsibility for maintenance of the way (usually the abutting owners), the various approvals required from the city/town for development of the way, and issues regarding utilities. The public does have a right to travel on private ways (drivers, bike riders, and pedestrians), and owners cannot prevent the public from lawful use of the way.
It is possible for the owners to establish parking rules, but since it is a private way, police have very limited jurisdiction as to enforcement. If members of the public are acting contrary to law, then they would be liable just as they would be for the same behaviors on public ways, but private way owners cannot independently restrict their lawful behavior, and dog-walking in and of itself would have to be considered as a lawful act. One’s assessment of the type of person walking through the neighborhood does not give rise to any preventative actions by private way abutters.
Cities/towns typically have by-laws regarding the private ways within that locale, but they almost always govern matters such as plowing, trash removal, and the like.
Rick Jones says
“Private” means private responsibility (for upkeep) without private rights of any sort. The town and public retain all rights related to right of way and so on. Thus I do not see anything of value that the town is “taking” that they do not already have. The only thing the town is “taking” is the responsibility of upkeep once the abutters pay to bring the road up to standard. In other words, the town is “taking” an expense now borne by the abutters. Why should the town pay anything to abutters for assuming an expense without any new benefit? And why would anyone sue to have a liability removed without losing any benefit?
As a Hillcrest resident, I am very much in favor of paying for the improvements and handing over the future responsibility. Someone needs to explain more clearly why there is any danger of a lawsuit–what are the grounds for suing when a benefit is gained and nothing is lost?