[Town Meeting] Article 20/55 Venner Road Information

[KazChaz at aol.com]

I read the materials posted  by Mr. Loretti. They are interesting, but don't 
really have much  applicability to the Venner Road situation. The following is 
what I have  unearthed so far. I understand that the rules of this list 
prohibit advocacy, so  I will simply set forth what I have learned.
 
     Under MGLc 41sec 80, the town can establish  exterior lines for (the 
future widening of) a road "and thereafter no  structure shall be erected or 
maintained between the exterior lines of the way  so established.... Lines 
established under this section may be discontinued  in the manner provided for the 
discontinuance of a highway or a town  way" . That discontinuance is governed by 
MGLc 82 sec 21, which stands  for the proposition that only TM can 
discontinue a road, or, if I'm reading  correctly the case of Mahan v. Rockport, 287 
Mass 34 (1934), the  unused exterior lines drawn for the road.  

When the exterior lines established by the town cause  damages to the owner 
of the property on which the lines have been drawn, the  owner is entitled to 
damages, by operation of MGLc 41sec 81, which states in  pertinent part: Any 
person injured in his property as aforesaid or by  the establishment or 
discontinuance of exterior lines under section eighty may  recover the damages so 
caused under chapter seventy-nine.....
 
    Thus I surmise that what happened those decades ago is  that the town by 
drawing an exterior line on the Venner property that forbade  building within 
the line drawn, were deemed by statute as applicable to the  facts of the case 
to have caused damages to the owner, and thus was  required to pay to the 
owner as compensation for his damages the  amount of $2,000.00. In no sense can 
that be seen as an "investment" by the  town. The town now no longer requires 
the right to widen the road.  
 
    However, on the formal legal side the positions remain  somewhat murky. 
This does have similarities to an easement, and it  cannot be said that a court 
would not analyze a challenge to an  adverse action here in the same way it 
looks at easements. Under the  "abandonment of purpose doctrine", it's safe to 
say that if what the  town owns is determined to be in effect a road-widening 
easement, that  eaement will be judicially extinguished. Moreover, as I 
learned from  what the town mamager wrote in yesterday's handout, the town itself in 
its order  of taking back in 1942 referred to what it took as an easement, 
even though,  under the statutory scheme referred to above, it was not necessary 
to do so.  Common sense suggests that a reasonable negotiated resolution is 
in  everybody's best interest.
 
    Anyone who wishes to learn more about how all of  this seems to work 
should feel free to contact me.
 
Chuck Kazarian
Precinct 6

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://seven.pairlist.net/pipermail/townmeeting/attachments/20060511/b480de55/attachment.html