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1 <br /> MERRICK, LOUISON & COSTELLO, LLP <br /> Thomas Fudula <br /> April 12, 2004 <br /> Page Two of Two <br /> beyond the scope of its legal authority. Furthermore, to the extent that the Town enters <br /> upon a private way, not legally laid out, and removes obstructions, including gates, rails, <br /> bars or fences erected upon or across a private way, such action could be deemed by the <br /> proprietors of the private way to be interference with their private property rights, thus, <br /> exposing the Town to potential damages and liability for its actions. <br /> Provisions of G.L. c.86, §§3 and 5 do authorize the boards or officers having <br /> authority over ways in a town to remove encroachments, gates, rails, bars, or fences upon <br /> or across public or private ways legally laid out. To the extent that the proposed Zoning <br /> By-law is consistent with.the provisions of G.L. c.86 §§3 and 5, it would likely pass legal <br /> muster. <br /> i p <br /> However, Article 13 proposes to amend the definition of"Street" set forth in r <br /> §174-3 of the Zoning By-law to include "every public or private way shown on a Plan or <br /> Subdivision recorded prior to October 1, 2003, even if not approved by the Planning <br /> Board". The proposed revised definition would declare all such public or private ways as <br /> "legally laid out" streets. This proposed revision of the definition of the term "Street" <br /> would render every public or private way shown on a recorded plan prior to October 1, <br /> 2003 as a legally laid out way, notwithstanding the fact that the statutory requirements of ±� <br /> G.L. c.82 relative to street lay-outs have not been complied with. In my opinion, the By- <br /> law, as proposed, would be inconsistent with the statutory lay-out,requirements for public <br /> and private ways set forth in G.L. c.82, §21-32A and, thus, would be legally <br /> unenforceable. n <br /> Ill summary, to the extent that the proposed Zoning By-law Amendment proposes <br /> to require the Town to remove obstructions on private ways which have not been legally <br /> - �aa <br /> laid out pursuant to the provisions of G.L. c.82, I believe that it would be legally s <br /> unenforceable and could expose the Town to liability for trespass and damage to private <br /> A R <br /> property. <br /> i <br /> Please contact me if you have any fw-ther questions in this regard. <br /> Ver truly yours, <br /> Pdttrick J. Costell j <br /> cc: Joyce M. Mason <br /> P:\MASHPEE\General Legal ServicesTudula 4-12-04.doc t <br /> .r <br />