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4 <br /> MERRICK, LOUISON & COSTELLO, LLP <br /> ATTORNEYS AT r.AW r <br /> 67 BATTERYMARCH STREET ' <br /> BOSTON, MASSACHUSETTS 02110 <br /> Al . <br /> TELEPHONE: (617) 439-0305 <br /> FACSIMILE: (617)439-0325 <br /> www.merrickle.com <br /> April 12, 2004 ,a <br /> .,r <br /> Thomas Fudala <br /> Town Planner <br /> Town of Mashpee <br /> 16 Great Neck Road North <br /> Mashpee, MA 02649 <br /> ;� tM <br /> Re: Legality of Proposed Article 13 for Annual Town Meeting Warrant-Relative to <br /> Removal of Obstructions within Streets and Ways <br /> Dear Mr. Fudala: <br /> a <br /> You have requested my opinion as to the legality of proposed Article 13 of the <br /> Annual Town Meeting Warrant, a petitioned warrant article seeking to amend the Town's <br /> Zoning By-law by adding a new provision relative to removal of obstructions within <br /> streets and public or private rights of way and amending the definition of"Streets" set <br /> forth in the Zoning By-law. <br /> In my opinion, the scope of the proposed new By-law, identified as §174-13-1, <br /> would exceed the scope of the Town's legal jurisdiction over certain private ways which <br /> have not been legally laid out to the extent it relates to removal of obstructions within <br /> such private rights of way. It is well established in Massachusetts that private ways,not <br /> laid out by public authority or dedicated to public use, are wholly subject to private <br /> ownership. W.D. Cowles, Inc. v. Woicekoski, 7 Mass. Appeals Ct. 18 (1979). Towns in <br /> Massachusetts do have statutory authority to appropriate money for the removal of snow <br /> and ice on private ways and may, by ordinance or by-law, provide temporary repairs of <br /> private ways. (G.L. c. 40, §6C and 6N). Such appropriations of money and maintenance <br /> and repair of private ways may only be undertaken by a Town upon local adoption of w <br /> these statutory provisions by the Town Meeting. Beyond these limited statutorily <br /> authorized functions, the maintenance, upkeep and repair of private ways is the duty and <br /> responsibility of the abutters to a private way. To the extent that the proposed Zoning �. <br /> By-law, §174-13.1,provides that the Town would be required to remove obstructions on <br /> private rights of way which have not been formally laid out as private ways, said By-law <br /> would, in my opinion, be legally unenforceable because it would require the Town to act <br /> : <br /> : ' l <br />