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USA Statutes : massachusetts
Title : PART I. ADMINISTRATION OF THE GOVERNMENT
Chapter : TITLE XIII. EMINENT DOMAIN AND BETTERMENTS
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Section 1. The taking of real estate or of any interest therein by right of eminent domain may be effected in the following manner. A board of officers upon whom authority to take real estate by eminent domain on behalf of any body politic or corporate has been conferred by law, having first complied with all the preliminary requirements prescribed by law, may adopt an order of taking, which shall contain a description of the land taken sufficiently accurate for identification, and shall state the interest therein taken and the purpose for which such property is taken, and in case such taking if for an improvement for which betterments may be assessed shall state whether betterments are to be assessed therefor. In case there are trees upon the land taken, or structures affixed thereto, the order of taking shall state whether the same are to be included in the taking, and, if they are not so included, shall allow the owner a reasonable time after the date of the order or after entry or possession to remove the same, to be specified in the order.
in pais Section 10. When the real estate of any person has been taken for the public use or has been damaged by the construction, maintenance, operation, alteration, repair or discontinuance of a public improvement or has been entered for a public purpose, but such taking, entry or damage was not effected by or in accordance with a formal vote or order of the board of officers of a body politic or corporate duly authorized by law, or when the personal property of any person has been damaged, seized, destroyed or used for a public purpose, and by such taking, damage, entry, seizure, destruction or use he has suffered an injury for which he is entitled to compensation, the damages therefor may be recovered under this chapter. If the injury was caused by or on behalf of the commonwealth or of a county, city, town or district, the officer or board of officers under whose direction or control the injury was caused shall award the damages upon the petition of any person entitled thereto. If the injury was caused by a railroad corporation, the county commissioners of the county in which the property taken, damaged, entered upon, seized, destroyed or used was located, and, if the injury was caused by a private corporation other than a railroad, the aldermen of the city or the selectmen of the town in which such property was located, shall award the damages upon the petition of any person entitled thereto or of the corporation liable therefor. In case of a specific taking, entry, seizure or other act causing destruction or damage or depriving the owner of the use of his property permanently or for a definite period of time the damages shall be assessed as of the date of such taking, entry, seizure or other act and the right thereto shall vest on such date and a petition for an award of damages therefor under this section may be filed within one year thereafter; otherwise damages shall be assessed with respect to any parcel of property as of the date when such property was first injuriously affected, the right thereto shall vest upon the completion of the public improvement which caused the injury, and a petition for an award of damages therefor under this section may be filed within one year after such completion.
certain sections; petition for writ of mandamus Section 10A. Compliance with the provisions of sections six, seven, seven A, seven B, seven C, seven D, eight A, nine, ten and thirty-six A may be enforced against any person having a duty of compliance therewith by writ of mandamus issued upon the petition of any person adversely affected by noncompliance therewith. The body politic or corporate on behalf of which the taking was made shall be joined in any such petition, and the petitioner may recover therefrom in the same proceeding damages sustained by reason of such noncompliance, with costs.
Notwithstanding the foregoing provisions, noncompliance with said sections six, seven, seven A, seven B, seven C, seven D, eight A, nine and ten shall not affect the validity of the proceedings under this chapter.
petition for award of damages Section 11. If a single parcel of land taken or injured by a private corporation lies in more than one county or in more than one town, a petition for an award of damages under section seven may be made to the appropriate board of officers of either of such counties or of either of such towns. The board of officers to whom petition is first made shall have exclusive jurisdiction thereof, and shall award said damages as though the land lay entirely in one county, or in one town. If land injured by a public improvement lies outside the commonwealth, the petition may be made to the board which would have jurisdiction if it lay in the same county, or in the same town, as such public improvement.
Section 12. The damages for property taken under this chapter shall be fixed at the value thereof before the recording of the order of taking, and in case only part of a parcel of land is taken there shall be included damages for all injury to the part not taken caused by the taking or by the public improvement for which the taking is made; and there shall be deducted the benefit accruing to the part not taken unless it was stated in the order of taking that betterments were to be assessed. In determining the damages to a parcel of land injured when no part of it has been taken, regard shall be had only to such injury as is special and peculiar to such parcel, and there shall be deducted the benefit accruing to such parcel, unless it was stated in the order of taking, or if there was no taking in the order for the establishment, construction, alteration, repair or discontinuance of the public improvement which caused the injury, that betterments were to be assessed. Whenever the title or interest taken is such that the property will be exempt from taxation so long as it is held and used for the purpose for which it is taken, the damages for the taking shall include an amount or amounts separately determined and stated which shall be estimated to be equal to that portion of the tax assessed upon the property for the fiscal year in which it is taken which, if the tax were apportioned pro rata according to the number of days in such fiscal year, would be allocable to the days ensuing after the taking, and an additional amount equal to the tax assessed against the property for the ensuing fiscal year, if the taking is made between January first and June thirtieth inclusive. Notwithstanding the other provisions of this section, in a program eligible for federal financial assistance, whenever the federal government authorizes a federal agency to allow a measure of damage, or other standard for payments to owners of property taken which would increase the payments to said owners over the measure of damages set forth hereunder, then in such cases the measure of damages shall be the measure of damages set forth hereunder plus any such increase, provided that the taking agency will receive partial or full reimbursement from the federal government for such increase.
full compensation; determination of fair market value; time limit Section 12A. Notwithstanding any special or general law to the contrary, if property which is known to be subject to an imminent taking under this chapter is diminished in value by a disaster as determined by the President of the United States pursuant to section 102 of the Disaster Relief Act of 1970, 42 U.
S.
C. 4402(1), prior to or within two years after the recording of such order of taking, the damages for such property not compensated by insurance or otherwise shall be fixed at the fair market value prior to the time of the disaster. If property diminished in value by such a disaster is not subject to the original notice of taking but, within said two years, is included within such order of taking, damages for such property shall also be fixed at the fair market value prior to the time of the disaster.
Section 13. If there are trees upon or structures affixed to the land taken which are not included in the taking, the owner may remove the same, but the damages shall include the value thereof, so far as they enhance the value of the land, and the value thereof for purposes of removal shall be deducted from the damages. If part of a parcel to which structures are affixed is taken, the damages shall include the value of all structures upon such parcel so far as they enhance the value of the land, deducting therefrom the value of all structures or parts thereof left standing on the part not taken, and, if the taking did not include the structures, the value for purposes of removal of the structures upon the part taken. If the owner of trees upon land taken refuses or neglects to remove them within the time specified in the order of taking, he shall be deemed to have relinquished his rights thereto. If the owner of structures upon land taken refuses or neglects to remove them within the time specified in the order of taking, the officers having the direction and control of the public improvement in connection with which the taking was made shall sell such structures at public auction, after five days’ notice of such sale, and hold the proceeds for the benefit of such owner, and the expenses of such sale shall be deducted from the owner’s damages; but if such property is of less value than the estimated expense of such sale no sale need be made. In that case, or if at the sale no person bids for such property, the owner thereof shall be held to have relinquished his right thereto. If the owner of personal property lying upon land taken refuses or neglects to remove it after reasonable notice in writing from the officers having the direction and control of the public improvement in connection with which the taking was made, he shall be held to have relinquished his right thereto.
Section 14. A person entitled to an award of his damages under this chapter or the body politic or corporate bound to pay the same, whether a petition has or has not been filed or award made under section six, seven, nine or ten, may petition for the assessment of such damages to the superior court of the county in which the property taken or injured was situated. If a single parcel of land so taken or injured lies in more than one county, the petition may be filed in the superior court of either such county, and the court in which such petition is first filed shall have exclusive jurisdiction thereof and shall assess damages as though the land lay entirely in one county; provided, that if a petition for damages has previously been filed under section eleven, the petition to the superior court shall be filed in the same county. If the land injured lies outside the commonwealth, such petition shall be filed in the superior court of the county in which the public improvement which caused the injury is situated.
Section 16. A petition for the assessment of damages under section fourteen may be filed within three years after the right to such damages has vested; but any person, including every mortgagee of record, whose property has been taken or injured, and who has not received notice under section eight or otherwise of the proceedings whereby he is entitled to damages at least sixty days before the expiration of such three years, may file such petition within six months after the taking possession of his property or the receipt by him of actual notice of the taking, whichever first occurs, or, if his property has not been taken, within six months after he first suffers actual injury in his property.
proceedings quashed Section 17. If a person petitions for an award or assessment of his damages within the time limited by law, or is a party to such petition by another person, and the petition is quashed, abated or otherwise avoided or defeated for any inaccuracy, irregularity or matter of form, or if, after verdict for such petitioner or other party, the judgment is arrested or reversed on a writ of error, or the proceedings are quashed on certiorari, such petitioner or other party may begin such proceedings anew within one year after such abatement, reversal or other determination.
is contested Section 18. If a suit, in which the right of a body politic or corporate to effect a particular public improvement or to make a particular taking is drawn in question, is brought within the time for filing a petition to the proper tribunal for an award or assessment of the damages caused by such improvement or taking, or within six months after the determination of an earlier suit involving the same question, brought within the time for filing such petition, which failed for want of jurisdiction, defect of form or other like cause not decisive of the merits of the controversy, the petition may be filed within six months after the final determination of such suit.
by law Section 19. If the time for locating or constructing a public improvement by a private corporation shall be extended by statute, all unsettled claims against the corporation for damages to land shall be revived, and the claimants for such damages may petition to the proper tribunal within one year after the taking effect of such statute. This section shall not apply to cases in which, by reason of a defect in the original location of a public improvement already constructed, there has been a new location thereof.
Section 2. Where no other provision is made by law, a taking of land by eminent domain by or on behalf of the commonwealth shall be made by the governor and council, a taking by or on behalf of a county by the county commissioners of such county, a taking by or on behalf of a city by the aldermen, a taking by or on behalf of a town by the selectmen, a taking by or on behalf of a district by its prudential committee and a taking by or on behalf of a private corporation by its board of directors.
Section 20. If damages may be recovered under this chapter for the taking of or injury to property of a person under guardianship or conservatorship or property held in trust, the guardian, conservator or trustee may petition for and recover, and may release all such damages in like manner as if the land or other property were held in his own right.
Section 21. If a person who is entitled to petition for an award or assessment of his damages under this chapter dies without filing such petition within the time limited therefor, his executor or administrator may within one year from the date of his appointment file such petition in the same manner and with the same effect as if filed by the deceased in his lifetime.
Section 22. A complaint brought under section fourteen shall name all parties adversely interested who are known to the petitioner, and process shall issue and service be made in accordance with the Massachusetts Rules of Civil Procedure. Any defense to the petition not relating to the amount of damages shall be pleaded within thirty days after the service of process; provided that no answer relating solely to the amount of damages shall be filed by any party and no person shall be defaulted for failure to enter an appearance. All matters pertaining to the litigation shall be heard by a judge in the superior court department, and there shall be one trial before a jury, unless all parties waive trial by jury and file a written agreement requesting a trial without a jury. Interrogatories may be filed with the same effect as in other civil actions. In case of trial by jury, if either party requests it, the jury shall view the premises. Judgment shall be entered and execution issued as in other civil actions, except that if final judgment is entered in favor of the plaintiff against the commonwealth for damages, the clerk of the superior court for the county where such judgment is entered shall, within seven days after the final disposition of the case and the expiration of all rights to appeal therefrom, transmit a certified copy of the docket entries and a certificate of such judgment showing the amount due from the commonwealth, to the comptroller who shall notify the governor. The governor shall draw his warrant for such amount on the state treasurer, who shall pay the same, with such interest as is authorized by section thirty-seven.
in same property Section 23. If joint tenants, or tenants in common, or other persons having joint or several estates or interests in a single piece of property sustain damages in such property which are recoverable under this chapter, they may join in any petition to recover the damages thereby incurred, or any one or more of them may petition for his or their damages, subject to sections twenty-four to thirty-three, inclusive.
remaindermen; trust Section 24. If a tenant for life or for years and the remainderman or reversioner sustain damages which are recoverable under this chapter, by the taking of their property by eminent domain or by injury thereto under authority of law, or if property so taken or injured is encumbered by a contingent remainder, executory devise or power of appointment, entire damages shall be assessed without apportionment thereof, and shall be paid to, or be recoverable by, any person whom the parties may appoint, and be held in trust by him for their benefit according to their respective interests. The trustee shall, from the income thereof, pay to the reversioner or remainderman the value of any annual rent or other payment which would, but for such damages, have been payable by the tenant, and the balance thereof to such tenant during the period for which his estate was limited, and upon its termination, he shall pay the principal to the reversioner or remainderman.
special to separate estate Section 25. The amount so to be placed in trust shall include only the damages assessed to the whole property; and any damage special to a separate estate therein, and all interest or other earnings which accrue between the taking and the receipt by the trustee of the damages to the whole property, shall be awarded in the same proceedings separately.
appointment; bond Section 26. If a person having an interest in such property is, by reason of legal disability, incapable of choosing a trustee, or is unascertained or not in being, or if the parties cannot agree upon a choice, the probate court of the county in which the property is situated shall, upon application of the board of officers of the body politic or corporate whose duty it is to award the damages, or of any person interested or of any other person, acting in behalf of such persons, whether in being or not, as may by any possibility be or become interested in said property, appoint a trustee, who shall give to the judge of probate a bond with such sureties and in such sum as the judge may order, conditioned for the faithful performance of his duties.
petition Section 27. If there are several parties, who have several estates in the same property at the same time, other than the estates and interests for which provision is made in section twenty-four, and the property is taken in whole or in part or receives injury for which damages are recoverable under this chapter, and one of such parties petitions the superior court to ascertain his damages, the other parties may become parties to the proceedings under such petition, and the damages of all of them may be determined together, in the manner provided in the three following sections.
Section 28. Upon such petition, the court may order the petitioner to give notice thereof to all the other parties interested, by serving each of them with an attested copy of such petition and the order thereon fourteen days before the next return day, in order that the other parties may appear and become parties to the proceedings under the petition.
apportionment Section 29. If, on such petition, the court or jury find any of the parties entitled to damages, there shall first be found and set forth the total amount of damages sustained by the owners of such property, estimating the same as an entire estate and as if it were the sole property of one owner in fee simple; and such damages shall then be apportioned among the several parties who are found to be entitled thereto, in proportion to their several interests and to the damages sustained by them, respectively, and such apportionment shall be set forth in the finding or verdict; and if it is found that any party has not sustained damage, it shall be set forth in the finding or verdict that he is awarded no damages. The finding or verdict shall be conclusive upon all parties interested who have become parties to the petition.
possession Section 3. The board of officers by whom an order of taking has been adopted under section one shall within thirty days thereafter cause a copy thereof, signed by them or certified by their secretary or clerk, or, in case of a taking by or on behalf of a city by a board of officers having no secretary or clerk, certified by the city clerk, to be recorded in the registry of deeds of every county or district in which the property taken or any of it lies. The copy of an order of taking made under chapter one hundred and fifty-nine in connection with proceedings thereunder to abolish grade crossings by the department of highways, or by the department of telecommunications and energy, may be filed and recorded without the payment of any fee therefor. Upon the recording of an order of taking under this section, title to the fee of the property taken or to such other interest therein as has been designated in such order shall vest in the body politic or corporate on behalf of which the taking was made; and the right to damages for such taking shall thereupon vest in the persons entitled thereto unless otherwise provided by law.
If the person in possession of property which has been taken in fee, or in which an easement has been taken, by eminent domain under this chapter refuses to permit the body politic or corporate by which the taking was made to enter thereon and take possession thereof or to exercise its rights under the taking after thirty days’ notice in writing sent to him by registered mail or posted upon the property so taken or in which an easement has been so taken, the board of officers having the direction and control of the public improvement in connection with which the taking was made may issue its warrant to the sheriff of the county in which the property is situated or to his deputy directing him to make entry on the property so taken and to take possession thereof or of the easement therein which has been taken, on behalf of said body politic or corporate, and such sheriff or his deputy shall forthwith execute said warrant using such force as he may deem necessary for the purpose.
Section 30. If it appears in any proceedings under the seven preceding sections that an interest in such property is unrepresented by reason of a contingency or other cause by which the owner thereof is unknown or cannot then be ascertained, or because of the disability of such owner, a guardian ad litem to represent such interest may be appointed by the tribunal in which such proceedings are pending; or the judge of probate for the county in which such proceedings are pending may, upon petition of any party in interest, after such notice as he may order to all persons who, or whose issue unborn may be or may become interested in such apportionment, appoint a trustee, who, upon giving such bond as the judge of probate requires, shall represent such interest, and shall receive, manage and invest any money receivable on account thereof, for the benefit of the parties entitled thereto, and shall pay the principal and interest thereof to such parties when entitled thereto. Such guardian ad litem or trustee shall be allowed such costs, including counsel fees, as may be ordered by the court in which such proceedings are finally determined, to be paid from the damages apportioned to the interest which he represents.
property Section 31. The tenant in possession of property which is encumbered by a contingent remainder, executory devise or power of appointment may, subject to section sixteen, petition the superior court for the assessment of damages; and if he fails so to petition within the first six months of the year allowed by said section, a trustee under section twenty-four or section twenty-six may within the remaining six months thereof petition therefor.
Section 32. If property which is taken in whole or in part by eminent domain or receives injury, for which damages are recoverable under this chapter, is mortgaged, both the mortgagor and the mortgagee, in addition to their rights under the mortgage, shall have the same powers, rights and privileges, and be subject to the same liabilities and duties, as are provided in this chapter for owners of property so taken or injured, and all petitions for the award or assessment of such damages shall state all mortgages which are known by the petitioner to exist upon the property. Mortgagors and mortgagees may join in any such petition, or become parties to any proceedings for the award or assessment of damages under this chapter, and, if the petition is filed by a mortgagor or mortgagee of property taken or injured, the tribunal to which it is presented shall order the petitioner to give notice thereof to all other mortgagors or mortgagees of the same property by serving on each of them, fourteen days at least before the time of hearing, an attested copy thereof and of the order thereon, that they may become parties to the proceedings.
mortgagees Section 33. If mortgagors or mortgagees begin or become parties to such proceedings, entire damages shall, upon final judgment, be assessed for the property taken, and such portion thereof as is equal to the amount then unpaid thereon shall be ordered to be paid to every mortgagee who is a party, in the order of his mortgage, and the remainder to the mortgagor; and separate judgment shall be entered accordingly for each mortgagee, who shall hold his judgment in trust, first, with any proceeds realized thereon, to satisfy his mortgage debt, and, after such debt is in any way satisfied, to assign the judgment or pay over any remainder of the proceeds to the mortgagor or other person entitled thereto.
Section 34. Upon the filing of a petition under section fourteen by or against the commonwealth or a county, city, town or district or any other legal entity which is authorized under the provisions of any general or special law to take property in whole or in part or of any interest therein by eminent domain, the court shall, at the request of any party to the proceeding, advance the same so that it may be heard and determined with as little delay as possible.
property; admissibility Section 35. The valuation made by the assessors of a town for the purposes of taxation for the three years next preceding the date of the taking of or injury to real estate by the commonwealth or by a county, city, town or district under authority of law may, in proceedings, brought under section fourteen to recover the damages to such real estate, the whole or part of which is so taken or injured, be introduced as evidence of the fair market value of the real estate by any party to the suit; provided, however, that if the valuation of any one year is so introduced, the valuations of all three years shall be introduced in evidence; and provided, further, that no such valuation shall be so introduced as such evidence unless within the five years preceding such taking or injury there has been a comprehensive revaluation of the real estate of the town and the valuation or valuations sought to be introduced are valuations assessed after such comprehensive revaluation.
Section 35A. In case of a trial by jury in a proceeding brought under section fourteen, the amount, if any, to which the petitioner is entitled by reason of the tax assessed upon the property in the year in which it was taken, as provided in section twelve, shall be separately determined by the court, either upon stipulation of the parties or upon evidence received, after the jury has rendered its verdict.
Section 36. No petition brought under section fourteen shall be discontinued except by leave of court or by agreement of all the parties thereto; and any party thereto may prosecute the same.
right to appeal Section 36A. The body politic or corporate against which an award is made under section seven, nine or ten, or against which a judgment is entered under section fourteen, shall, within thirty days after all rights of appeal therefrom have been exhausted or waived, make payment in accordance with such award or judgment.
Section 37. Damages under this chapter shall bear interest at the rate calculated pursuant to the provisions of this section from the date on which the right to damages under this chapter vested until paid, except that an award shall not bear interest after it is payable unless the body politic or corporate liable therefor fails upon demand to pay the same to the person entitled thereto. Interest shall be added by the clerk of the court to the damages expressed in a verdict, finding, or order for judgment. A judgment, whether against the commonwealth or any other body politic or corporate, shall bear interest at the rate calculated pursuant to the provisions of this section from the date of the entry of such judgment to and including the last day of the month prior to the month in which such judgment is satisfied, except that a judgment against the commonwealth shall not bear interest if it is satisfied within thirty days of such entry.
Where the period for which prejudgment interest is owed is not more than one year, such interest shall be calculated at an annual rate equal to the weekly average one-year constant maturity treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date on which the right to damages under this chapter vested. Where the period for which prejudgment interest is owed is more than one year, such interest for the first year shall be calculated in accordance with the preceding sentence, and such interest for each additional year shall be calculated on the principal amount due at an annual rate equal to the weekly average one-year constant maturity treasury yield, as published by the board of governors of the Federal Reserve System, for the calendar week preceding the beginning of each additional year. Post–judgment interest shall be calculated in the same manner as pre-judgment interest, but using, in the first year after judgment, the rate for the calendar week preceding the date on which judgment entered, and in any additional year, the rate for the calendar week preceding the beginning of such additional year.
The secretary of administration and finance shall maintain a schedule of the rates described herein for distribution, upon request, to all clerks of courts and all board of officers upon whom authority to take real estate by eminent domain under this chapter on behalf of any body politic or corporate that has been conferred by law.
Section 38. In all proceedings before county commissioners under this chapter, section eighteen of chapter thirty-four shall be applicable. In all proceedings brought under section fourteen, if a petition is filed after an award of damages has been made and the damages are increased, or if no award has been made and the petitioner is found to be entitled to damages, he shall recover costs, which shall be taxed as in actions at law; otherwise he shall pay costs.
Section 39. Whenever damages may be recovered under this chapter, the body politic or corporate liable for such damages may after the right to such damages has become vested effect such settlement of the damages with the person entitled thereto as it may deem to be for its best interests, and it may as one of the terms of the settlement of a claim for damages growing out of the proceedings in respect of which betterments have been or are to be assessed agree in writing with the owner of the land assessed to assume such betterments. Every settlement under this section shall be in writing and in full satisfaction of all damages for such taking with interest thereon and taxable costs, if any. After approval of such settlement by the board of officers who made the taking for which damages are sought, or after acceptance of an offer of such settlement by the person seeking such damages, whichever occurs later, the amount of such settlement shall bear interest at the rate calculated pursuant to the provisions of section thirty-seven from the date of such settlement to and including the last day of the month prior to the month in which payment thereof is made or tendered.
Section 4. If land of a registered owner, or any right or interest therein, is taken by eminent domain, the board of officers by whom the taking is made shall file for registration in the proper registry district a description of the registered land so taken, giving the name of each owner thereof, referring by number and place of registration in the registration book to each certificate of title, and stating what estate or interest in the land is taken, and for what purpose. A memorandum of the right or interest taken shall be made on each certificate of title by the assistant recorder. If the fee simple of part of the registered land is taken a new certificate shall be entered to the owner for the land remaining to him after such taking. All fees on account of any memorandum of registration or entry of new certificates shall be paid by the body politic or corporate which takes the land.
If the body politic or corporate which takes the land acquires the fee simple of all or part of the registered land, a new certificate shall be entered to the body politic or corporate making the fee simple taking.
damages Section 40. Before a taking is made or injury inflicted by a private corporation for which damages may be recovered under this chapter, such corporation shall give to the board of officers by whom such damages are to be awarded security to their satisfaction for the payment of all damages and costs which may be awarded by them or by the court for the land or other property taken or injured; and if, upon petition of the owner and notice to the adverse party, any security taken appears to them to have become insufficient, they shall require the corporation to give further security to their satisfaction. If the corporation fails to comply with this section any person entitled to such damages may treat the taking of his property or the proceedings by which the right to inflict injury thereon was acquired as void and any interference by such corporation with the use and enjoyment of his property as unlawful.
Section 41. If no petition under section fourteen is filed within the time limited, the award of damages shall be final and the amount thereof shall be paid upon demand, and if not so paid may be recovered in an action of contract.
corporations Section 42. If a private corporation has erected or laid poles, wires, pipes, rails or other structures in a public way, for the construction, operation or maintenance of which damages may be recovered from such corporation under this chapter by the owners of any interest in land abutting upon such way, and such corporation does not pay such damages to an owner of any such interest after they have been finally determined and within thirty days after demand, the mayor of the city or the selectmen of the town in which such structures are located may, upon request of such owner, remove all the structures of such corporation from that portion of the public way upon which the land in which such person has an interest abuts, first leaving a written statement at the office of such corporation in such city or town of the time when and place from which they intend to remove such structures, not less than forty-eight hours prior to such removal. If such corporation has no office in such town, such notice shall be deposited in the post office, postage prepaid, and directed to such corporation at its principal office in the commonwealth. The town so removing any such structures may recover the expense thereof of such corporation. This section shall not prevent such owner from collecting the damages assessed.
award of damages Section 43. When any easement or other right less than the fee which has been taken by eminent domain has been abandoned in accordance with law before the damages accruing from such taking have been finally determined, the fact of such abandonment may be considered in reduction of damages in any proceedings under this chapter for the award or assessment thereof.
Section 44. If the agents of the United States and the persons owning or interested in any property which is required for any purposes for which the United States is authorized to take property by eminent domain cannot agree upon the price to be paid for the interest of such persons therein, the United States may file a petition in the superior court for the county in which such property lies, praying for the condemnation of such property. Such petition shall contain a description of the property to which it relates, sufficiently accurate for identification, and a statement of the purpose for which it is sought to be taken. If the court, after notice to all parties interested, finds that the United States has the right to take such property by eminent domain, it shall determine the value thereof in accordance with this chapter, so far as it is applicable. If such value with costs and reasonable expenses to be taxed by the court is, within thirty days after final determination thereof, paid or tendered to said owners or parties interested, or in case of their neglect or refusal to receive the same, if it is paid to the commonwealth for their use and subject to their order, a decree of condemnation shall be entered by the court, and, if the property taken consists of real estate, a copy of the decree shall be recorded in the registry of deeds of every county or district in which said property or any of it lies, and the fee of said property shall thereupon vest in the United States.
Section 44A. If real estate taken in whole or in part by eminent domain was at the time of said taking subject to any lien for taxes, assessments or other charges, which is extinguished by such taking, and if the collector of taxes of the town in which such real estate is located gives written notice of a claim of the amount covered by such lien to the body politic or corporate, on behalf of which such taking was made, prior to the payment of any award of damages for such taking or to the entry of judgment therefor, said collector shall be entitled to be paid such amount before any payment of damages for such taking is made to any other party; and any amount so payable on account of such taxes, assessments or other charges shall be deducted from the amount of such damages otherwise payable.
Section 45. No real estate shall be taken for public use by the formal vote or order of any board of officers except under this chapter or chapter eighty A, and no damages shall be assessed for the taking or seizure of property for a public purpose or for injury thereto by authority of law, except under this chapter or chapter eighty A, notwithstanding any general or special act hitherto enacted; provided, that nothing contained in this chapter or in chapter eighty A shall be construed as amending or in any way affecting chapter two hundred and fifty-three.
Section 5. No portion of a state institution shall be taken for a public way, canal, railroad or railway without leave of the general court specially obtained. No portion of a highway, public building or cemetery shall be taken for railroad purposes outside the limits of the route fixed for such railroad without the consent of the town in which the land sought to be taken is situated. No portion of the land taken for or held as a park by a town under chapter forty-five shall be taken or used for a public way, canal, railroad or railway, or for altering or widening the same, without the approval of the board having control of the public parks of such town. No portion of a common or park dedicated to the use of the public, or appropriated to such use without interruption for a period of twenty years, shall be taken or used for a public way, canal, railroad or railway, or for altering or widening the same, except with the consent of the city or town in which such common or park is situated after public notice, given in the manner provided in cases of the laying out and alteration of highways, stating the extent and limits of the portion thereof proposed to be taken. Such consent shall be expressed by a vote of the inhabitants, if ten or more voters file a request in writing to that effect with the selectmen or aldermen within thirty days after the publication of the notice; in the absence of such request, consent shall be presumed. In a city such vote shall be taken by ballot on a day appointed for the purpose by the aldermen, which may be the day of any election. Notice that such vote is to be taken with a statement of the question to be voted upon shall be given by the aldermen in the manner provided by law for giving notice of city elections, fourteen days at least before the day appointed therefor, and all provisions of law relative to elections consistent herewith shall be applicable to such vote, and a certificate of the result shall be recorded by the city clerk.
landmarks; taking Section 5A. No historical or archeological landmark certified under the provisions of section twenty-seven of chapter nine and no property owned, preserved and maintained by any historical organization or society as an ancient landmark or as property of historical or antiquarian interest shall be taken without leave of the general court specially obtained.
Section 5B. No property used for agriculture or farming as defined in section one A of chapter one hundred and twenty-eight shall be taken without the consent of the owner thereof, nor shall an easement be taken on such property without such consent, except after a hearing by the board at which such owner shall be entitled to be heard and allowed to introduce evidence that other land not used for agriculture or farming, as so defined, and without occupied buildings situated thereon is available for the public use for which it is intended to take his property. If such evidence is introduced and accepted by the board as valid, the board shall exempt said property from the taking. The provisions of this section shall not apply to takings in behalf of the commonwealth, takings for highway purposes, nor to takings authorized by the department of telecommunications and energy, except that in such takings notices of hearings required by section seventy-two of chapter one hundred and sixty-four shall be sent to all interested parties.
Section 5C. No property shall be taken without the consent of the owner thereof, nor shall an easement be taken on such property without such consent, unless notice of intent to take such property is given to the owner of such property at least thirty days prior to the date of the actual taking. The provisions of this section shall not apply to takings on behalf of the commonwealth, county, city or town. Said provisions shall also not apply to takings authorized by the department of telecommunications and energy, except that in such takings notice of hearings required by section seventy-two of chapter one hundred and sixty-four shall be sent to the owners of any property to be taken.
award; payment Section 6. When a taking is made on behalf of a body politic or corporate other than a corporation described in section seven, the board of officers by whom the order of taking is adopted shall, at the time of the adoption thereof, award the damages sustained by every person in his property by reason of such taking. Such award may be amended by said board of officers at any time prior to the payment thereof by reason of a change in ownership or value of said property before the right to damages therefor has become vested or for other good cause shown. Such damages shall be paid by such body politic or corporate unless other provision is made by law.
execution Section 6A. Any person lawfully occupying real property who is displaced therefrom and caused to move as a result of a taking of such property by eminent domain, shall be paid by the body politic or corporate on behalf of which the taking is made, unless other provision is made by law, the reasonable and necessary expenses incurred by him, as determined by said body, in moving his personal property to another location within the commonwealth, but in no event more than the amounts permitted by the provisions of chapter seventy-nine A. Moving expense payments granted under the provisions of this section shall not be subject to attachment by trustee process or otherwise, nor shall they be subject to be taken on execution or other process.
time of payment Section 7. When a taking is made on behalf of a railroad corporation, the damages shall be awarded by the county commissioners of the county in which the land taken lies, upon the petition of such corporation or of any person entitled thereto, if filed within one year of the date when the taking is recorded. When the taking is made on behalf of a private corporation other than a railroad corporation the damages shall be awarded by the aldermen of the city, or the selectmen of the town, in which the land taken lies, upon the petition of such corporation or of any person entitled thereto, if filed within one year of the date when the taking is recorded; provided, that there shall be no award of the damages caused by the taking of land or other acts performed in the abolition or alteration of a grade crossing under chapter one hundred and fifty-nine, but the amount of such damages may be agreed upon by the party primarily liable therefor and any person entitled thereto. A petition for an award of damages under this section may be filed in the office of the board having jurisdiction of the subject matter thereof at any time within the period herein limited, but no petition shall be received or damages awarded under this section after a petition with respect to the same subject matter has been filed in the superior court under section fourteen.
Section 7A. An award of damages made pursuant to section six or section seven shall not be made until at least one appraisal has been made in accordance with section twelve on behalf of the taking authority and filed therewith; unless all persons entitled to damages by reason of the taking shall have made a prior written request of the taking authority that the taking be made without awaiting such appraisal and filing, in which event the taking authority may award only nominal damages at the time of adoption of the order but shall, within four months after the taking and after such appraisal is made and filed, amend the award of damages to reflect the damages sustained, and shall immediately after such amendment given written notice thereof to the same persons and in the same manner of service specified by section seven C and, notwithstanding any contrary provision of law, any interest either on damages or on the excess of any payment or deposit made by the taking authority over damages subsequently assessed shall run only from the date of such amendment or the expiration of such four months, whichever is earlier. Notwithstanding the foregoing, no appraisal shall be made by the taking authority if all persons entitled to damages by reason of such taking waive, in writing, their right to any damages.
documents; time of issuance of checks Section 7B. Immediately after the right to damages becomes vested, the board of officers who have made a taking under this chapter shall do all things and execute all documents necessary and within their lawful authority for the prompt payment of all damages awarded in the order of taking. In the event that authority to make or approve such payments, or to perform any act necessary thereto, is conferred by law upon any person other than said board of officers, such person shall do all things and execute all documents necessary and within his lawful authority for such prompt payment. Any check for the payment of such damages shall be issued either within sixty days after the right thereto becomes vested, or within fifteen days after demand therefor by any person entitled thereto is made, as said board of officers shall determine, and shall, except as provided in section seven D, be made immediately available to the persons entitled thereto at such time and place as may be designated by said board of officers.
service Section 7C. Immediately after the right to damages becomes vested, the board of officers who have made a taking under this chapter shall give notice thereof to every person, including every mortgagee of record, whose property has been taken or who is otherwise entitled to damages on account of such taking. Such notice shall be in writing and shall describe in general terms the purpose and extent of the taking, and shall state the amount of damages, if any, awarded for such taking and the time and place at which he may obtain payment thereof, or, if no damages have been awarded, the time within which he may petition for an award of the same, and the time within which he may petition the superior court to determine his damages under section fourteen. Such notice may be served by personal service, or by leaving an attested copy thereof at the last and usual place of abode of the person to be notified if he is a resident of the commonwealth, by any person authorized to serve civil process, or notice may be given to persons within or without the commonwealth, by registered mail or other suitable means. Failure to give notice shall not affect the time within which a petition for damages may be filed, except as provided by section sixteen.
disability; manner of payment of damages; apportionment of damages; deposits Section 7D. If the board of officers by whom a taking has been made is unable, upon reasonable investigation, to determine the name of any person entitled to damages awarded under section six, or if said board of officers determines that any person entitled to such damages is under a legal disability from receiving payment thereof, any check on account of such damages shall be made payable to the treasurer or other officer having like powers of the body politic or corporate on behalf of which such taking has been made, hereinafter in this section and in section seven E called the treasurer, and deposited with him for the benefit of the person or persons entitled thereto. If said board of officers determines that damages awarded under section six should be apportioned between two or more persons having an estate or interest in a single parcel of land, any check on account of such damages may be made payable to the treasurer and deposited with him for the benefit of the persons entitled thereto. The treasurer shall deposit any such check in a savings bank or other like institution, or in savings accounts in a trust company, or invest the same in share accounts in a federal savings and loan association or a savings and loan association located in the commonwealth, or in investments described in section thirty-eight of chapter twenty-nine, to accumulate for the benefit of the person or persons entitled thereto. Such deposit or investment shall be made in the name of the treasurer. When the person entitled to such amount or any portion thereof satisfies said board of officers of his right to receive it, said board of officers shall, after such notice as it may order, order such amount or portion thereof, or the proceeds of its investment, to be transferred to him by the treasurer. Amounts deposited or invested under this section shall be subject to the provisions of chapter two hundred A, relating to abandoned property, and the treasurer shall, insofar as practicable, make such reports and give such notice concerning the same as are required respectively by sections seven and eight of said chapter two hundred A. No action by a taking authority under the provisions of this section shall be construed so as to prevent or delay the operation of section sixteen.
Section 7E. If any check issued in accordance with section seven B remains unclaimed by any person entitled thereto for a period of sixty days after notice in accordance with section seven C, such check shall be withdrawn and a new check issued in like amount. Such new check shall be made payable to the treasurer and shall be deposited, held and disposed of in accordance with section seven D.
tax collectors Section 7F. The board of officers shall, immediately upon giving notice in accordance with section seven C or upon depositing a check in accordance with sections seven D or seven E, send a copy of such notice or of notice of such deposit, as the case may be, to the collector of taxes of the city or town in which the land to which such notice or petition pertains is located.
of interest; refund of overpayment; recovery of payment made to person not entitled thereto Section 7G. A person who receives a payment in accordance with section seven B, or who withdraws an amount deposited in accordance with section seven D, may accept the same without prejudice to or waiver of any right to claim a larger sum by proceeding before an appropriate tribunal. No interest shall be recovered except upon such amount of damages as shall, upon final adjudication, be in excess of the amount of such payment or amount deposited.
In the event that the amount of such payment or deposit shall prove to be in excess of damages subsequently assessed by an appropriate tribunal, the petitioner shall be ordered by a proper decree to refund to the body politic or corporate an amount equal to the difference between the amount of such payment or deposit and the damages subsequently assessed, plus costs and interest at the rate of six per cent per annum from the date as of which damages were assessed.
In the event that a payment is made to a person not entitled thereto, the body politic or corporate may recover the same from such person in an action at law or by bill in equity, and the board of officers, upon recovery of such payment, shall dispose of the same in accordance with section seven B or section seven D, as said board of officers shall determine.
hardship notwithstanding title deficiencies Section 7H. If the board of officers who have made a taking under this chapter are unable to make or approve prompt payment of all damages awarded in the order of taking as provided for under section seven B because of legal deficiencies in the title of the property subject to said order of taking, and if the total amount of the award for damages awarded under said order of taking is less than two thousand dollars, then said board of officers or any other person authorized to make or approve such payment are hereby authorized wherever feasible to make or approve such payment in order to prevent a hardship on the person or persons in whom the right to damages has vested.
excess Section 8A. The board of officers who have made a taking under this chapter shall, prior to the expiration of sixty days subsequent to the recording of the order of taking, offer in writing to every person entitled to damages on account of such taking a reasonable amount which such board is willing to pay, either in settlement under section thirty-nine of all damages for such taking with interest thereon, together with taxable costs, if any, or as a payment pro tanto. If such person elects to accept the offer as a pro tanto payment, such election shall be without prejudice to or waiver or surrender of any right to claim a larger sum by proceeding before an appropriate tribunal. If such tribunal shall assess damages in an amount less than the amount actually paid as a pro tanto payment, the petitioner shall be ordered by a proper decree to refund to the body politic or corporate an amount equal to the difference between the pro tanto payment and the amount of damages so found by such tribunal, plus costs and interest at the rate calculated pursuant to the provisions of section thirty-seven from the date when such damages were assessed.
After a pro tanto payment has been made or after an offer of payment has been made in writing as required by this section and not accepted, no interest shall be recovered except upon such amount of damages as shall upon final adjudication be in excess of said payment or in excess of the written offer of payment as herein described; provided, however, that all taxable costs accruing subsequently to such payment or to such written offer of payment shall be recoverable by the petitioner if the adjudicated damages exceed such payment or such offer, otherwise the petitioner shall be liable for and pay such costs.
Section 8B. No person in possession of property which has been taken under the provisions of this chapter shall be required to vacate any portion of such property which is being used by him as a dwelling place or place of business at the time the order of taking is made until four months after notice of such taking has been given to him in accordance with the provisions of section seven C.
No tenant or lessee in possession of property which has been taken under the provisions of this chapter, but who is not entitled to notice of such taking under the provisions of section seven C, shall be required to vacate any portion of such property which is being used by him as a dwelling place or place of business at the time the order of taking is made until four months after notice of such taking has been given him in writing by certified mail, by personal service, or by leaving an attested copy thereof at his last and usual place of abode, if he is a resident of the commonwealth, or at the portion of the property taken which is so used by him.
constituting a taking Section 9. When injury has been caused to the real estate of any person by the establishment, construction, maintenance, operation, alteration, repair or discontinuance of a public improvement which does not involve the taking of private property, and he is entitled to compensation by law for such injury, if such establishment, construction, maintenance, operation, alteration, repair or discontinuance was effected by or in accordance with a formal vote or order of the board of officers of a body politic or corporate duly authorized by law, the damages shall be awarded, determined and collected and notice of the order shall be given in the same manner as if there had been a taking of property on behalf of such body politic or corporate under section one. In case such establishment, construction, maintenance, operation, alteration, repair or discontinuance is an improvement for which betterments may be assessed, such vote or order shall state whether betterments are to be assessed therefor. The damages shall be assessed as of the date when the vote or order is adopted, but the right to damages shall not vest and the damages shall not be paid until the work which caused the injury has been completed, or until the public improvement which has been discontinued has ceased to be open to public use, or, in the case of injury to any water, water source or water or flowage right, until the water is actually withdrawn or diverted, and if the order does not go into effect, or is rescinded or altered, only so much of the damages shall be paid as has been actually sustained.
Section 1. The following terms as used in this chapter shall, unless a different meaning clearly appears from the context, have the following meanings:“Acquisition”, the taking of real property by eminent domain, negotiated sale, or other means, by or for any public agency, or by any person or agency authorized to take by eminent domain, or by a corporation established under the provisions of chapter one hundred and twenty-one A.
“Bureau”, the bureau of relocation in the department of housing and community development.
“Business”, any lawful activity, except a farm operation, conducted primarily(a) for the purchase, sale, lease, and rental of personal and real property, and for the manufacture, processing, or marketing of products, commodities or any other personal property;(b) for the sale of services to the public;(c) by a nonprofit organization; or solely for the purpose of qualifying for moving and related expenses, for assisting in the purchase, sale, resale, manufacture, processing or marketing of products, commodities, personal property, or services by the erection and maintenance of an outdoor advertising display or displays which do not necessarily have to be located on the premises on which any of the cited activities are conducted.
“Comparable replacement dwelling”, one which is:(a) safe and sanitary, in conformance with the regulations of the department of public health entitled Article II of the state sanitary code, established pursuant to section one hundred and twenty-seven of chapter one hundred and eleven;(b) functionally equivalent and substantially the same as the acquired dwelling with respect to number of rooms, area of living space, type of construction, and state of repair, provided it is standard and adequate in size to accommodate the displaced person;(c) in an area not generally less desirable than the area in which the acquired dwelling is located and as similar as possible with regard to housing values, public utilities, and public and commercial facilities;(d) within the financial means of the displaced person, the gross cost of which is not greater than twenty-five percent of gross income;(e) reasonably accessible to the displaced person’s present or potential place of employment;(f) available on the market to the displaced person;(g) open to all persons regardless of race, color, religion, sex or national origin and consistent with the requirements of Title VIII of the Civil Rights Act of 1968.
“Displaced person”, any person who, on or after the effective date of this act, moves from real property, or moves his personal property from real property, as a result of the acquisition of such property or the receipt of a written order to vacate real property, for a program or project undertaken by an agency or person required to provide relocation assistance under this act.
“Dwelling”, a single-family building, a single-family unit, including a nonhousekeeping unit, in a two-family or multifamily building, a unit of a condominium or cooperative housing project, a manufactured home, or other residential unit.
“Farm operation”, any activity which is conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use, and customarily produces commodities in sufficient quantity capable of contributing materially to the operator’s support.
“Gross income”, projected annual income from all sources of each member of the family residing in the household who is at least eighteen years of age.
“Initiation of negotiations”, the date the acquiring agency makes the initial written offer to the owner of real property to be acquired for a project of an amount established by the agency as just compensation for the property. In instances where acquisition does not occur, initiation of negotiations shall mean the date of vacating.
“Person”, shall mean any natural person, trust, corporation, limited or general partnership, association, foundation, society, joint stock company, joint venture, or any form of business entity or enterprise, but shall not include an agency of the commonwealth.
“Personal property”, property which is:(a) tangible property situated on the real property vacated or to be vacated by a displaced person and which is considered personal property and is non-compensable as real property, and(b) in the case of a tenant, fixtures and equipment, and other property which may be characterized as real property under state or local law, but which the tenant may lawfully, and at his election, determines to move and for which the tenant is not compensated in the real property acquisition. In the case of an owner of real property, the determination as to whether an item of property is personal or real shall depend upon how it is identified in the acquisition appraisals and the closing or settlement statement with respect to the real property acquisitions; provided, that no item of property which is compensable under state and local law to the owner of real property in the real property acquisition may be treated as tangible personal property in computing actual direct losses of tangible personal property.
“Public agency”, any department, agency, board, commission, authority, or other instrumentality of the commonwealth or of a political subdivision of the commonwealth; or of two or more subdivisions thereof.
“Relocation agency”, an agency qualified under section two.
“Relocation payment”, any of the following types of payments:(a) for families and individuals, for moving and related expenses, for assistance in the purchase of a replacement housing unit, or for assistance in the rental of a replacement housing unit;(b) for business concerns, including nonprofit organizations and farms, for actual reasonable moving expenses, for the actual direct loss of tangible personal property, for actual reasonable expenses in searching for a replacement business, or for a fixed sum in lieu of the above equal to the business concern’s average annual net earnings, but not less than two thousand five hundred dollars nor more than ten thousand dollars.
“Relocation plan”, the plan submitted by a displacing agency to the bureau pursuant to sections four and eight.
Section 10. If a relocation plan required by section four is disapproved under section five, or approval is suspended under section nine, because the bureau determines that adequate relocation housing is not available, the taking agency may file with the bureau its certificate that the project involved is an emergency project which must be carried out in spite of the unavailability of such housing. If the bureau, after considering the foregoing and such other evidence as is deemed pertinent, determines that the project involved is an emergency project and that the public interest demands the displacement of occupants even though adequate relocation housing may be unavailable, emergency approval may be given, provided the relocation plan is satisfactory to the bureau in other respects.
municipality; state financial assistance Section 11. Funds appropriated or otherwise available to any public agency for the acquisition, rehabilitation or demolition of real property or any interest therein for a particular program or project shall be available also for obligation and expenditure to carry out the provisions of this act as applied to that program or project.
If a municipality acquires, rehabilitates, or demolishes real property, and state financial assistance is available to pay the cost, in whole or part, of the acquisition, rehabilitation, or demolition of such real property, or of the improvement for which such property is acquired, the cost to the unit of local government of providing the payments and services prescribed by this act shall be included as part of the costs of the project for which state financial assistance is available to such municipality, and shall be eligible for state financial assistance in the same manner and in the same ratio as other project costs.
Section 12. The bureau may promulgate regulations to carry out the purposes of this chapter and to assure that relocation payments are administered in a manner which is equitable and uniform; and may agree to waive with respect to any particular acquisition any provision of this chapter which would constitute a bar to federal reimbursement otherwise available with respect to any project on account of which such acquisition is proposed.
of persons; moving expenses; state financial assistance; reports Section 13. Any public agency displacing one or more persons by issuing an order to vacate real property for the purpose of enforcing Article II of the state sanitary code, pursuant to section one hundred and twenty-seven B of chapter one hundred and eleven, shall provide relocation assistance and a relocation payment to such person or persons for actual reasonable documented expenses in moving his personal property from the real property, unless such payment is otherwise provided. The provisions of this section shall apply only to real property which is not part of or constitutes the entirety of a project where relocation payments would otherwise be required.
In instances where such enforcement results in the eviction of occupants, the state shall reimburse the locality carrying out such enforcement for fifty per cent of the costs of providing such relocation assistance and moving payments. Such state financial assistance shall be contingent upon the provision of relocation services and payments as documented by periodic reports as required by regulation pursuant to section twelve.
moving expenses Section 14. Any person utilizing mortgage financing issued, insured, or subsidized by a public agency, including an agency of the federal government, for a project resulting in the displacement of occupants, shall provide relocation assistance and a relocation payment to any such displaced occupant for actual reasonable documented expenses in moving his personal property from such real property.
Section 15. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application.
qualification prior to displacement of occupants Section 2. No acquisition, rehabilitation, demolition, or other improvement which shall involve the displacement of occupants of dwelling units or business units shall be made unless and until the bureau has qualified a relocation advisory agency to give relocation assistance to the occupants to be displaced. Any agency, public or private, may be qualified by the bureau to act as a relocation agency until such time as the bureau may, on stated grounds, withdraw qualifications; or the bureau may qualify any agency, public or private, proposed by a displacing agency to act as a relocation agency with respect to particular acquisitions. The bureau may qualify a displacing agency to act as the relocation agency with respect to particular acquisitions.
provide relocation assistance Section 3. Any public agency, or any person authorized to take by eminent domain, including corporations established under the provisions of chapter one hundred and twenty-one A, shall provide relocation assistance and payments under this act upon undertaking a project which results in displacement of occupants by the acquisition of real property or by the issuing of a written order to vacate for purposes of rehabilitation, demolition, or other improvement.
Section 4. At the time of the submission of an application for public approval or funding for a project involving the displacement of more than five dwelling or business units, the displacing agency shall submit to the bureau of relocation a relocation plan. The relocation plan shall show the names and addresses of all occupants to be displaced; the number of individuals, families, and business concerns to be displaced; the date on which such displacement will begin; the needs of the displaced occupants for relocation assistance; the availability of safe and sanitary housing, commercial buildings or sites within the means of occupants to be displaced; a program for their relocation; and a demonstration in accordance with bureau regulations that the relocation agency has coordinated the plan with other planned or proposed land acquisitions in the city or town which may affect the carrying out of the relocation program.
In the case of the displacement of the occupants of less than six dwelling or business units, the displacing agency shall not be required to submit any such relocation plan, but shall provide a relocation assistance program, as set forth in section six and shall pay any such displaced occupant relocation payments, as set forth in section seven.
Section 5. If the costs of relocation assistance are reimbursable in whole or in part by the federal government and the relocation plan is required to be examined and reviewed by an agency or department of the federal government or to comply with the requirements of an agency or department of the federal government, the bureau shall receive the relocation plan for informational purposes and for the purposes of section nine. Any relocation assistance required under this chapter which is in addition to applicable requirements under federal law shall be subject to review by the bureau to determine whether there has been compliance with the provisions of section four. The bureau shall approve any plan which has been approved by such agency or department of the federal government and complies with requirements for such additional relocation assistance.
The bureau shall review all other relocation plans to determine whether there has been compliance with the requirements of section four and any regulations which are issued from time to time by the bureau in pursuance thereof, to determine whether there has been adequate provision for the needs of occupants to be displaced and whether there are adequate relocation housing and business locations for such occupants. The bureau shall approve any relocation plan which complies with the aforesaid requirements.
Section 6. After approval has been granted in accordance with the provisions of section five, the relocation agency shall be authorized to carry out the relocation plan. Each relocation assistance program shall (1) fully inform eligible persons at the earliest possible date as to the availability of relocation payments and assistance; (2) supply displaced occupants with information concerning public and private housing programs, commercial sites, and social and economic assistance programs; (3) assist in securing within a reasonable period of time prior to displacement suitable standard replacement housing within the financial means of the families and individuals displaced; (4) assist owners of displaced businesses and farm operations in obtaining and becoming established in suitable business locations or replacement farms; and (5) administer relocation payments in a fair and equitable manner.
payments; exemption from attachment or execution; exclusion from determination of eligibility for certain public benefits Section 7. I. (A) Any agency or person specified under this act which acquires real property, or issues an order to vacate real property for purposes of rehabilitation, or demolition, or other improvement, shall make fair and reasonable relocation payments to displaced persons and businesses, upon proper application, for:1. actual documented reasonable expenses in moving himself, his family, his business, farm operation, or other personal property;2. actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the relocation agency; and3. actual reasonable expenses in searching for a replacement business or farm.
(B) Any displaced person eligible for payments under subsection (A) who is displaced from a dwelling and who elects to accept the payments authorized by this subsection in lieu of the payments authorized by subsection (A), may receive a moving expense allowance not to exceed three hundred dollars, determined in accordance with the prevailing fixed payment schedule of the department of highways, and a dislocation allowance of two hundred dollars.
(C) Any displaced person eligible for payments under subsection (A) who is displaced from his place of business or from his farm operation and who elects to accept the payment authorized by this subsection in lieu of the payment authorized by said subsection (A), may receive a fixed payment in an amount equal to the average annual net earnings of the business or farm operation, except that such payment shall not be less than two thousand five hundred dollars nor more than ten thousand dollars. In the case of a business, no payment shall be made under this subsection unless the business (1) cannot be relocated without a substantial loss of its existing patronage, and (2) is not part of a commercial enterprise having at least one other establishment not being acquired, which is engaged in the same or similar business. For purposes of this subsection, the term “average annual net earnings” means one half of any net earnings of the business or farm operation, before federal and state income taxes, during the two taxable years immediately preceding the taxable year in which such business or farm operation moves from the real property, or during such other period as the relocation agency determines to be more equitable for establishing such earnings, and includes any compensation paid by the business or farm operation to the owner, his spouse, or his dependents during such period.
II. (A) In addition to payments otherwise authorized by this act, an additional payment not in excess of fifteen thousand dollars shall be made to any displaced person who is displaced from a dwelling actually owned and occupied by such displaced person for not less than one hundred and eighty days prior to the initiation of negotiations for the acquisition of the property. Such additional payment shall include the following elements:1. The amount, if any, which when added to the acquisition cost of the dwelling acquired, equals the reasonable cost of a comparable replacement dwelling which is decent, safe, and sanitary and adequate to accommodate such displaced person, reasonably accessible to public services and place of employment and available on the private market. The reasonable cost of a comparable replacement dwelling shall be determined by analysis of existing available standard dwellings which are functionally equivalent and substantially similar to the acquired dwelling and located in a comparable, but not less desirable, neighborhood, in accordance with a method approved by the bureau of relocation, unless otherwise provided by federal law.
2. The amount, if any, which will compensate such displaced person for any increased interest costs which such person is required to pay for financing the acquisition of any such comparable replacement dwelling. Such amount shall be paid only if the dwelling acquired was encumbered by a bona fide mortgage which was a valid lien on such dwelling for not less than one hundred and eighty days prior to the initiation of negotiations for the acquisition of such dwelling. Such amount shall be equal to the excess in the aggregate interest and other debt service costs of that amount of the principal of the mortgage on the replacement dwelling which is equal to the unpaid balance of the mortgage on the acquired dwelling, over the remainder term of the mortgage on the acquired dwelling, reduced to discounted present value. The discount rate shall be the prevailing interest rate paid on savings deposits by commercial banks in the general area in which the replacement dwelling is located.
3. Reasonable expenses incurred by such displaced person for evidence of title, recording fees, and other legal and closing costs incidental to the purchase of the replacement dwelling, but not including prepaid expenses.
(B) The additional payment authorized by this section shall be made only to such a displaced person who purchases and occupies a replacement dwelling which is decent, safe, and sanitary not later than the end of the one year period beginning on the date on which he receives final payment of all costs of the acquired dwelling, or on the date on which he moves from the acquired dwelling, whichever is the later date.
III. In addition to amounts otherwise authorized by this act, a payment shall be made to any displaced person, not eligible to receive a payment under subdivision II, who actually and lawfully occupied the dwelling from which he is displaced for not less than ninety days prior to the initiation of negotiations for acquisition of such dwelling. Such payment shall assist the displaced person:(A) To pay any increase in cost required to lease or rent for a period of four years, a decent, safe, and sanitary comparable replacement dwelling of standards adequate to accommodate such person in an area similar with regard to economic rents to the area of displacement, but not generally less desirable in regard to public utilities and public and commercial facilities, and reasonably accessible to the displaced person’s place of employment, but not to exceed four thousand dollars. The cost of a comparable replacement dwelling shall be determined by analysis of existing available standard dwellings which are functionally equivalent and substantially the same as the dwelling from which the person is displaced, provided it is standard, in accordance with a method approved by the bureau of relocation, unless otherwise provided by federal law;(B) To make a down payment, including incidental expenses described in clause 3 of subsection (A) of subdivision II, on the purchase of a decent, safe, and sanitary dwelling of standards adequate to accommodate the displaced household, and shall be in an amount equal to the amount which would have been required to pay any increase in rent for comparable replacement housing over a four year period as defined above. In no event may the total payment exceed four thousand dollars.
All determinations required to carry out subdivisions I, II, and III shall be determined by regulations issued pursuant to section twelve, unless otherwise provided by federal law.
Any person aggrieved by a determination as to eligibility for, or the amount of, a payment authorized by this act, may have his claim reviewed by the head of the displacing agency through a grievance procedure approved by the bureau of relocation. Where such person is not satisfied with the agency’s determination after such review and reconsideration, he is entitled to review of this claim by the bureau of relocation and the disposition of the bureau of said claim shall be final.
Relocation payments granted under the provisions of this chapter shall not be subject to attachment by trustee process or otherwise, nor shall they be subject to be taken on execution or other process. Payments received under this chapter shall not be considered as income for such purposes as establishing eligibility or the extent of eligibility of any person or family for publicly sponsored housing or public assistance programs including, without limitation, state and federal assistance to veterans.
review; approval Section 8. The taking agency or relocation agency shall inform the bureau of any substantial changes made in the relocation plan after approval under section five; and such changes shall be subject to review and approval under the provisions of section five.
Section 9. If the bureau determines that a taking agency or relocation agency is proceeding with a project in disregard of a relocation plan approved under section five, and that relocation assistance being given is inadequate, the bureau shall so notify the relocation agency and the taking agency in writing, and may suspend its approval of the plan. Upon receipt of written notice of such suspension, the taking agency shall not further displace occupants until the bureau notifies it in writing that such suspension is withdrawn. Written notice of suspension shall be sent by registered mail, and shall state the specific reasons for such suspension.
Section 1. Whenever a limited and determinable area receives benefit or advantage, other than the general advantage to the community, from a public improvement made by or in accordance with the formal vote or order of a board of officers of the commonwealth or of a county, city, town or district, and such order states that betterments are to be assessed for the improvement, such board shall within six months after the completion of the improvement determine the value of such benefit or advantage to the land within such area and assess upon each parcel thereof a proportionate share of the cost of such improvement, and shall include in such cost all damages awarded therefor under chapter seventy-nine; but no such assessment shall exceed the amount of such adjudged benefit or advantage. The board shall in the order of assessment designate as the owner of each parcel the person who was liable to assessment therefor on the preceding January first under the provisions of chapter fifty-nine.
Section 10. A person who is aggrieved by the refusal of a board of officers of a city, town or district to abate an assessment may, instead of pursuing the remedy provided by section seven, appeal within the time limited therein to the county commissioners of the county in which the land assessed is situated. The person so appealing shall, within ten days after the filing of said appeal, give written notice thereof to such city, town or district. Such notice may be given by mailing a copy of the appeal by registered mail, postage prepaid, to the board which made the assessment or to the clerk of such city, town or district. The county commissioners shall hear the parties, and shall have the same powers and duties with respect to the abatement of such assessment as the board by which it was assessed, and may make an order as to costs. The decision of the county commissioners shall be final.
board to act Section 10A. If the board with which a petition for the abatement of an assessment has been duly filed in accordance with the provisions of section five fails to act upon said petition within four months of the date of the filing of such petition, the petition shall be deemed to be denied, and the petitioner shall have the right within sixty days after the expiration of said four months to appeal as if the board had in fact denied the said petition; provided, that if the assessment has been paid, no appeal shall be taken after the expiration of ten months from the time of payment.
lessee Section 11. If an assessment is made upon land the whole or part of which is leased, the owner shall pay the assessment, and may collect of the lessee an additional rent for the portion so leased equal to ten per cent per annum on that proportion of the amount paid which the value of the leased portion bears to that of the whole estate, after deducting from the whole amount any money received for damages to such land in excess of what he has necessarily expended thereon by reason of such damages. A lessee aggrieved by the imposition of this burden may, within six months from the time demand is made upon him for such additional rent, file a petition in the superior court for the county in which the land is situated, to determine the proportion of the assessment which he ought to bear, and the proportion determined upon the petition shall be substituted for the proportion provided by this section. If such proportion is reduced the lessee shall recover costs from the owner; otherwise the owner shall recover costs from the lessee.
Section 12. Assessments made under this chapter shall constitute a lien upon the land assessed. The lien shall take effect upon the recording of the order stating that betterments are to be assessed for the improvement. Notwithstanding any other provision of this section or chapter eighty-three, if a county, city, town, or district elects to send notice to the owner of the land assessed indicating the amount of the assessment for the betterment, and said owner pays the amount due, no lien shall be recorded. The assessors shall indicate on the next tax bill that the amount of the betterment assessment has been paid and no further notation or demand shall be made on land so assessed. Except as otherwise provided, such lien shall terminate at the expiration of two years from October first in the year in which the assessment is first placed on the annual tax bill under section thirteen or, if an assessment has been apportioned, from October first in the year in which the last portion is so placed upon the annual tax bill, whichever is later, if in the meantime in either case the estate has been alienated and the instrument alienating the same has been recorded. If there is no recorded alienation within such period, the lien shall continue until there is a recorded alienation. If the validity of an assessment made under this chapter is called in question in any legal proceeding to which the board which made the assessment or the body politic for the benefit of which it was made is a party, instituted prior to the expiration of the lien therefor, the lien shall continue until one year after the validity of the assessment is finally determined, even though an alienation be recorded in the meantime. If at any time while a lien established by this section is in force, a sale or taking cannot in the opinion of the collector be legally made because of any federal or state law or because of any injunction or other action of, or proceeding in, any federal or state court or because of the action of any administrative body, the lien shall, if the statement provided for in section thirty-seven A of chapter sixty is filed, continue as provided in said section thirty-seven A, subject, however, to any lawful action under any paramount authority conferred by the constitution or laws of the United States or the constitution of the commonwealth. If the time for payment of an assessment is extended under section thirteen A or under any general or special law, the lien shall, if the statement provided for in section thirty-seven A of chapter sixty is filed, continue as provided in said section thirty-seven A. A lien under this section may be dissolved by filing for record in the registry of deeds of the county or district where the land subject to the lien lies a certificate, in a form approved by the commissioner of revenue, from the collector of taxes that the assessment, constituting the lien, together with any interest and costs thereon, has been paid or legally abated. The collector of taxes shall charge four dollars for each certificate so issued, and the money so received shall be paid into the town treasury.
Section 13. Assessments made by a board of the commonwealth under this chapter shall bear interest at one rate of five per cent per annum or, at the election of the board at a rate not to exceed two per cent above the rate of interest chargeable to the body politic on behalf of which the assessment was made, for the betterment project to which the assessments relate, from the thirtieth day after assessments have been committed to the collector. All other assessments made under this chapter shall bear interest at one rate of five per cent per annum or, at the election of the city or town at a rate equal to two per cent above the rate of interest chargeable to the city or town, for the betterment project to which the assessments relate, from the thirtieth day after assessments have been committed to the collector. The assessors shall add each year to the annual tax assessed with respect to each parcel of land all assessments, constituting liens thereon, which have been committed to the collector prior to January second of such year and which have not been apportioned as hereinafter provided, remaining unpaid, as certified to them by the collector, when the valuation list is completed, with interest to the date when interest on taxes becomes due and payable. At any time before the completion by the assessors of the valuation list for the year in which such assessments will first appear on the annual tax bill, the board of assessors may, and at the request of the owner of the land assessed shall, apportion all assessments or unpaid balances thereof made under this chapter into such number of equal portions, not exceeding twenty, as is determined by said board or as is requested by the owner, as the case may be, but no one of such portions shall be less than five dollars; provided, that, if an original assessment exceeds one hundred dollars and has been placed upon the annual tax bill, or has been apportioned into a number of portions less than twenty and the first portion has been placed upon an annual tax bill, the board of assessors may in its discretion, upon a request for the apportionment of such assessment into twenty portions made by the owner prior to a sale or taking of the land for the non-payment of such assessment or portion and upon payment of any necessary intervening charges and fees and such portions of such assessment as would have become due and payable if the request for apportionment had been seasonably made, apportion or reapportion the said assessment as aforesaid, and if any other tax or assessment constituting a lien upon the parcel to which the assessment so apportioned or reapportioned relates remains unpaid after such apportionment or reapportionment, the collector may institute proceedings anew for the sale or taking of such parcel at any time prior to the expiration of the lien or of a period of twenty days after such apportionment or reapportionment, whichever is the later. In any case in which an assessment relates to a state-funded project, the apportionment or reapportionment described herein shall be undertaken in accordance with the terms aforesaid by the board on whose behalf the assessment was made; provided, however, that the apportionment shall be made of said assessments or unpaid balances together with any interest due thereon. The assessors shall add one of said portions, with interest on the amount remaining unpaid from thirty days after the commitment of the original assessment to the collector to the date when interest on taxes becomes due and payable, to the first annual tax upon the land and shall add to the annual tax for each year thereafter one of said portions and one year’s interest on the amount of the assessment remaining unpaid until all such portions shall have been so added; all assessments and apportioned parts thereof, and interest thereon as herein provided, which have been added to the annual tax on any parcel of land shall be included in the annual tax bill thereon. After an assessment or a portion thereof has been placed on the annual tax bill, the total amount of said bill shall be subject to interest under and in accordance with the provisions of section fifty-seven of chapter fifty-nine.
Notwithstanding a prior apportionment, the assessors, upon written application of the owner of the land assessed, shall order that the full amount, or any portion thereof, remaining unpaid of any assessment be payable forthwith and shall commit said amount, together with interest thereon from thirty days after the commitment of the original assessment if no portion has been added to a tax levy, or if a portion has been added to a tax levy, then with interest from October first of the year to which the last portion has been added, with their warrant therefor, to the collector for collection. If a part of a prior apportioned assessment is ordered to be payable forthwith, the payments shall be credited to the terminal or final years so as to reduce the period of payment.
payment of assessments Section 13A. The board making the order for the assessment of any betterment upon land which is not built upon may extend the time of payment of the assessment until it is built upon or for a fixed time; but interest at the rate of four per cent per annum shall be paid annually upon the assessment from the time it was made, and the assessment shall be paid within three months after such land is built upon or at the expiration of such fixed time.
recordation; lien Section 13B. In a city or town which accepts the provisions of this section, the board of a county, city, town or district making the order for the assessment of any betterment, or balance of any assessment apportioned in accordance with the provisions of section thirteen, shall, upon the application of the owner of the real property assessed, if such owner is eligible for an exemption under clause Forty-first A of section five of chapter fifty-nine, enter into a deferral and recovery agreement with such owner on behalf of the city or town. In any instance in which a board of the commonwealth makes an order for the assessment of any betterments, said board of the commonwealth may enter into a deferral and recovery agreement on its own behalf in accordance with the terms of this section. Any such application shall be filed with the appropriate board within sixth months after notice of such assessment has been sent out by the collector. Such application may be filed with the clerk or secretary of said board, or delivered by mail or otherwise at their office.
The said agreement shall provide:(1) that no sale or transfer of such real property may be consummated unless the betterment assessment which would otherwise have been collected on such real property has been paid, with interest as applied in accordance with the provisions of section thirteen;(2) that upon the demise of the owner of such real property, the heirs-at-law, assignees or devisees shall have first priority to said real property by paying in full the total betterment assessment which would otherwise have been due, plus interest; provided, however, if such heir-at-law, assignee or devisee is a surviving spouse who enters into a betterment assessment deferral and recovery agreement under this section, payment of the betterment assessment and interest due shall not be required during the life of such surviving spouse;(3) that if the betterment assessments due, plus interest, are not paid by the heir-at-law, assignee or devisee or if payment is not postponed during the life of a surviving spouse, such betterment assessments and interest shall be recovered from the estate of the owner; and(4) that any joint owner or mortgagee holding a mortgage on such property has given written prior approval for such agreement, which written approval shall be made a part of such agreement.
In the case of each betterment assessment deferral and recovery agreement entered into between said board making the order for the assessment of a betterment and the owner or owners of such real property, said board shall forthwith cause to be recorded in the registry of deeds of the county or district in which the city or town is situated a statement of their action which shall constitute a lien upon the land covered by such agreement for such betterment assessment as has been assessed under the provisions of this chapter, plus interest as hereinafter provided. The statement shall name the owner or owners and shall include a description of the land. Unless such a statement is recorded the lien shall not be effective with respect to a bona fide purchaser or other transferee without actual knowledge of such lien. The filing fee for any statement recorded on behalf of a board of the commonwealth shall be paid by the owner or owners of such real property. The filing fee for other such statements shall be paid by the city or town and shall be added to and become a part of the taxes due.
Section 15. If land which is subject to a lien for an assessment made under this chapter is subsequently divided by sale, mortgage, partition or otherwise and such division has been duly recorded in the registry of deeds, the board, before the land has been advertised for sale for non-payment of the assessment, may, or upon the written request of the owner or mortgagee of a portion thereof, accompanied by a plan sufficient for the identification of the division of the whole estate, with the names of the different owners thereof, shall, divide said assessment or the amount thereof remaining unpaid, and the costs and interest accrued thereon, among the several parcels into which said land has been divided, assessing upon each parcel the part of the original assessment remaining unpaid proportionate to the special benefit received by such parcel from the improvement. After such assessment has been so divided, only the part of the assessment, interest and costs assessed upon each parcel shall constitute a lien upon such parcel. At least seven days prior to making such division the board shall send by registered mail to all owners of any interest in the land assessed, whose addresses are known to them, a notice of their intention to make such division and of the time appointed therefor, unless such notice has been waived. A person aggrieved by any action of the board under this section shall have the same remedy as a person aggrieved by the refusal of the board to abate an assessment.
Section 16. If an assessment is invalid and has not been paid in full or has been paid under such circumstances that it can be recovered back, it may be reassessed by the board in the amount for which the original assessment ought to have been made, at any time before the expiration of two years from the date of the assessment, if the land has in the meantime been alienated; otherwise at any time before the alienation thereof. Such assessment shall be a lien upon any sum paid on account of the original assessment, and to the extent that it is not thereby satisfied shall be a lien upon the land. It shall be collected in the same manner as an original assessment, and shall in all other respects be subject to this chapter.
Section 17. Whenever a formal vote or order for the laying out or construction of a public improvement, or for the taking of land therefor, states that betterments are to be assessed, no betterments shall be assessed except under this chapter or chapter eighty A, and all proceedings relating to such betterments shall be as herein or therein provided, notwithstanding any special act hitherto enacted.
Section 2. An order under section one which states that betterments are to be assessed for the improvement shall contain a description sufficiently accurate for identification of the area which it is expected will receive benefit or advantage, other than the general advantage to the community, from such improvement, and shall refer to a plan of such area, and shall contain an estimate of the betterments that will be assessed upon each parcel of land within such area; and such order, plan and estimate shall be recorded, within ninety days from the adoption of the order, or from the acceptance by a town of the laying out, relocation or alteration of a way in case such acceptance is required before the establishment thereof, in the registry of deeds of every county or district in which the benefited area is situated. No betterments shall be assessed for such improvement unless the order, plan and estimate are recorded as herein provided, nor upon any parcel of land not within such area, nor for a greater amount than such estimate.
Section 3. An owner of land abutting on a public improvement and liable to assessment therefor under this chapter may give notice in writing to the board, within three months after the award of damages is made, that he elects to surrender his land; and if said board adjudge that the public convenience and necessity require the taking of such abutting estate for the improvement named, they may take the whole thereof, and shall thereupon estimate its value, excluding the benefit or advantage accruing from such improvement; and such owner shall convey the estate to the body politic or corporate on behalf of which the assessment was made and may recover therefrom in contract the value so estimated. The commonwealth, county, city, town or district may sell any portion of said land which is not needed for such improvement.
Section 4. Within a reasonable time after making the assessment the board shall certify to the assessors the list of assessments upon land in each town who shall forthwith commit such assessments with their warrant to the collector of taxes thereof, and he shall forthwith send notice in accordance, except as to the date of notice, with section three of chapter sixty, to the person designated under section one as the owner of each parcel assessed, and any demand for the payment of such assessment shall be made upon such person. Except as otherwise herein provided, the collector shall have the same powers and be subject to the same duties with respect to such assessments as in the case of the annual taxes upon real estate, and the law in regard to the collection of the annual taxes, to the sale of land for the non-payment thereof and to redemption therefrom shall apply to assessments made under this chapter, so far as the same are applicable; but the owner of land assessed shall not be personally liable for the assessment thereon. Every collector of taxes receiving a list and warrant from the assessors shall collect the assessment therein set forth, and at such times as the assessors shall direct, or in the case of assessments relating to state funded projects, as the collector of taxes and the board determine shall pay over to the treasurer of the body politic on behalf of which the assessment was made the amounts collected by him.
Section 5. The owner of any real estate upon which betterments have been assessed may, within six months after notice of such assessment has been sent out by the collector, file with the board a petition for an abatement thereof, and the board shall grant such abatement as may be necessary to make such assessment conform to section one. Such petition may be filed with the clerk or secretary of the board, or delivered by mail or otherwise at their office. The board shall within ten days after their decision upon the petition give written notice thereof to the petitioner. If an assessment is abated by the board the assessment so determined shall stand as the assessment upon the land, and if it has not been paid shall be collected in the same manner as the original assessment. If the assessment has been paid, the person by whom it was paid shall be reimbursed by the body politic on behalf of which it was assessed to the amount of the abatement allowed, with interest at the rate of six per cent per annum from the time of payment.
Section 6. If a suit in which the validity of an assessment is drawn in question is brought within the time for filing a petition to the board for the abatement thereof or within six months after the determination of an earlier suit involving the same question, brought within the time for filing such petition, which failed for want of jurisdiction, defect of form or other like cause not decisive of the merits of the controversy, the petition may be filed within six months after the final determination of such suit.
Section 7. A person who is aggrieved by the refusal of the board to abate an assessment in whole or in part may within thirty days after notice of their decision appeal therefrom by filing a petition for the abatement of such assessment in the superior court for the county in which the land assessed is situated. If a single parcel of land so assessed lies in more than one county the petition may be filed in the superior court for either such county, and the court in which such petition is first filed shall have exclusive jurisdiction thereof.
Section 8. If a person who is entitled to petition for an abatement under this chapter dies within the time limited for such petition without having filed the same, his executor, administrator, heir or devisee, if interested, may, within one year after his interest vests, file such petition in the same manner and with the same effect as if filed by the deceased in his lifetime.
Section 9. Upon the filing of a petition under section seven, process shall issue and service be made as in suits in equity upon the body politic on behalf of which the assessment was made. Any defence to the petition not relating to the amount of the assessment must be pleaded within thirty days of the return day of the subpoena; but no answer relating solely to the amount of the assessment shall be filed, and there shall be no default for failure to enter an appearance. The trial shall be by the court unless one of the parties within the time prescribed in actions at law files a notice that he desires a trial by jury; and the court may appoint an auditor. Interrogatories may be filed with the same effect as in actions at law. The court, as the request of any party, shall advance the petition so that it may be heard and determined with as little delay as possible. In case petitions have been filed for the assessment of damages and for the abatement of betterments with respect to the same parcel of land and the same public improvement, the petitions shall be tried together. In case of trial by jury, if either party requests it the jury shall view the premises. If the assessment is not reduced the respondent shall recover costs and an execution shall issue therefor as in actions at law; but if the assessment is reduced the petitioner shall recover judgment for costs, and the assessment so determined shall stand as the assessment upon the land, and if it has not been paid shall be collected in the manner provided for an original assessment. If the assessment has been paid judgment shall be entered for the petitioner for the amount of the reduction, with interest at the rate of four per cent per annum from the time of payment.
Chapter 80A: Section 1. Authorization Section 1. A board of officers, hereinafter called the board, upon whom authority to take real estate by eminent domain on behalf of the commonwealth or of any county, city, town or district thereof, hereinafter described as the body politic, has been conferred by law, for the purpose of effecting a public improvement, may, at its election, instead of proceeding in accordance with chapter seventy-nine, or in accordance with chapters seventy-nine and eighty if betterments are to be assessed, institute proceedings for the taking of real estate or any interest therein, and for the assessment of betterments, in accordance with this chapter. So much of sections two to fifteen, inclusive, as relates to the assessment of betterments shall apply only to proceedings thereunder wherein the board votes under section two to assess betterments and so states in the order adopted thereunder.
Chapter 80A: Section 10. Final adjudication Section 10. If the verdict of the jury as finally established shall differ from the award of the commissioners with respect to the compensation or damages to which any person is entitled, the report of the commissioners shall be amended accordingly, and, after all applications for redetermination of compensation or damages have been disposed of, the report shall be presented to the court for confirmation. The report of the commissioners as thus amended shall be final and conclusive as to all questions of fact, but the court may hear and determine questions of law arising therefrom and may order the report to be confirmed or to be recommitted to the commissioners to be reconsidered in accordance with law, or may itself make such amendments and alterations as are necessary to render the report consistent with the law. If an appeal to the supreme judicial court or exceptions are taken with respect to the order of the justice of the superior court upon the motion for final confirmation of the commissioners’ report, or if the matter is reported to the supreme judicial court, the same shall be heard and determined without awaiting further proceedings in the superior court. The operation of the order shall be stayed pending the disposition of such appeal, exceptions or report, and the order shall, if necessary, be modified to conform to the decision of the supreme judicial court. After the expiration of thirty days from the final confirmation of the report, or if the same is affirmed by the supreme judicial court, of thirty days from the date of the rescript of said court, if the proceedings have not in the meantime been discontinued, and if it shall be made to appear that all laws requiring appropriations of money, to be raised by loan or otherwise, in cases of taking of property by eminent domain, in so far as applicable, have been complied with, judgment of condemnation shall be entered upon motion of the petitioner which shall be final and conclusive against all the world with respect to the validity and extent of the taking, and the right of the petitioner to assess betterments therefor, and against all parties to the proceedings with respect to the amount of compensation or damages to which any person is entitled and the amount of benefit or advantage which each parcel of land within the designated area will receive from the improvement. If judgment of condemnation is not entered within six months from the confirmation of the commissioners’ report, or from the rescript of the supreme judicial court, the petition shall be dismissed upon motion of any one or more of the parties respondent. The clerk of the court shall forthwith transmit for record to every registry of deeds designated in the petition as provided in section four a certified copy of any judgment of condemnation entered under this section or of any interlocutory judgment of condemnation entered under section eleven.
Chapter 80A: Section 11. Abandonment or discontinuance of proceedings Section 11. The board may at any time before final judgment of condemnation abandon the proposed improvement and discontinue the proceedings, in which case all action taken thereunder and under the proceedings for the laying out or establishment of such improvement shall become void; but in such case, or in case the petition shall be dismissed on motion of a party respondent under section ten, any person who has suffered damage or loss or been put to expense by the proceedings shall be entitled to recover indemnity in full by order of the court and for which execution shall issue. In case of abandonment or dismissal as aforesaid, the clerk of the court shall forthwith transmit for record to every registry of deeds designated in the petition as provided in section four a certificate that all proceedings in relation to such improvement have been discontinued or dismissed. At any time after the right of the petitioner to take the property described in the order for the purpose stated therein and to assess betterments therefor has been established, if it shall be made to appear that all laws requiring appropriations of money, to be raised by loan or otherwise, in cases of the taking of land by eminent domain, in so far as applicable, have been complied with, the court shall on motion of the petitioner enter an interlocutory judgment of condemnation, which shall have the same effect as a final judgment of condemnation, except with respect to compensation, damages and assessments for benefits, and the proceedings shall continue as herein provided with respect to compensation, damages, and assessments; but the petitioner shall not thereafter have the right to discontinue the proceedings.
Chapter 80A: Section 12. Transfer of property; interest transferred; payment of compensation Section 12. The taking shall become absolute and the right of the body politic to the real estate or interest therein described in the petition and the right of the respondents to compensation or damages shall vest upon the entry of either final or interlocutory judgment of condemnation, and it shall have immediate right of entry and possession, subject to the rights of the owners under section two with respect to structures and trees. The compensation or damages shall be payable when vested, or as soon thereafter as they are finally determined, and if not then paid may be recovered in an action of contract. In case two or more persons have appeared in the proceedings as parties respondent with interests adverse to each other with respect to a particular parcel of land, the body politic shall not be bound to pay such compensation until one or more of such persons have established his or their rights thereto in proper judicial proceedings to which the others of such persons are parties; but the proceedings to determine the amount of compensation shall not be stayed pending the establishment of such rights. Compensation and damages shall be assessed as of the date of the adoption of the order, and shall bear interest at the rate of six per cent per annum from the date when the right to damages becomes vested until payable, but shall not bear interest after they are payable unless the body politic fails upon demand to pay the same to the person entitled thereto. The body politic shall not pay compensation or damages to any person in excess of its estimate, except in accordance with an award of the commissioners, nor in excess of the award of the commissioners, except as amended in accordance with a verdict of the jury.
Chapter 80A: Section 13. Taxation of costs Section 13. If the petition is dismissed under section seven, costs, as in actions at law, shall be awarded to the respondents, in addition to indemnity for loss and damages as provided in section eleven. If, upon entry of an interlocutory or final judgment of condemnation it appears that a respondent has been awarded greater compensation or damages than was allotted to him in the estimate contained in the order adopted under sections two and three or if betterments to be assessed on the land of any respondent have been determined to be less than as estimated in said order, such respondent shall be entitled to such costs; otherwise, he shall be liable for such costs.
Chapter 80A: Section 14. Assessment of improvements; assessment lien; effective date Section 14. If the right to assess betterments has been established, the board, within six months after the completion of the improvement, shall assess a proportionate share of the whole or part of the cost thereof upon each parcel of land with respect to which a benefit or advantage has been determined as herein provided and in the amount so determined, unless the betterments so assessed shall exceed the cost of the improvement, in which case they shall be proportionately reduced; and such assessments shall not thereafter be abated. The lien for such assessments shall take effect upon the recording of the order of intention to take under section three.
Chapter 80A: Section 15. Application of sections controlling eminent domain and betterments; fees of guardians and commissioners Section 15. The provisions of chapters seventy-nine and eighty, and all other provisions of law relative to proceedings under said chapters, shall apply to proceedings under this chapter, and to betterments assessed thereunder, so far as applicable and not inconsistent with the provisions hereof; but no petition for the assessment of compensation or damages or for the abatement of an assessment shall be maintained by any person who has been made a party to the proceedings for condemnation or with respect to property the record owners of which at the time of the adoption of the order under section two have been made parties thereto. Failure to make any person having an interest in the land taken, damaged or assessed a party respondent under section four shall not invalidate the proceedings, but such person shall not be bound by the judgment in the proceedings in respect to compensation, damages or assessments. The court shall determine the compensation of guardians ad litem and commissioners appointed under this chapter, and shall have power to establish and regulate the procedure thereunder, so far as not therein prescribed.
Chapter 80A: Section 16. Election to proceed under this chapter Section 16. In any case where the commonwealth, or a county, city, town or district thereof, has been or shall be authorized by provisions of general or special law to take real estate or any interest therein by eminent domain under chapter seventy-nine, the officer or board of officers thereof authorized to exercise such power may, unless otherwise provided, elect to take such property or interest under this chapter and, if betterments are to be assessed, to assess the same hereunder.
Chapter 80A: Section 2. Order of intention; contents Section 2. The board, having first complied with all the preliminary requirements prescribed by law, shall adopt an order of intention to take, which shall contain a description of the property to be taken sufficiently accurate for identification, and shall state the interest therein to be taken and the purpose for which such property is to be taken, and, if betterments are to be assessed therefor, shall so state; otherwise, it shall state that no betterments are to be assessed. In case there are trees upon land so to be taken, or structures affixed thereto, the order shall state whether the same are to be included in the taking, and, if they are not to be so included, shall allow the owner a reasonable time after the taking becomes absolute to remove the same, to be specified in the order.
Chapter 80A: Section 3. Order of intention; additional provisions; notice of adoption Section 3. The order shall contain an estimate of all damages sustained by every person in his property by reason of such taking as of the date of the adoption of the order, and shall contain an estimate of the cost of the improvement, including such damages, and, if betterments are to be assessed, a description sufficiently accurate for identification of the area which it is expected will receive benefit or advantage, other than the general advantage to the community, from such improvement, and shall refer to a plan of such area, and shall contain an estimate of the betterments that will be assessed upon each parcel of land within such area. Notice of the adoption of such order shall be sent forthwith by registered mail to every person, whose address is known, appearing of record to have an interest in any land to be taken, damaged or assessed, by or on account of the proposed improvement, setting forth all estimates contained in said order in relation to said land, and a like notice shall be posted in a conspicuous place on each parcel thereof. Such order, plan and estimate shall be recorded, within ten days from the adoption of the order, in the registry of deeds of every county or district in which property to be taken or assessed is situated.
Chapter 80A: Section 4. Petition to take property Section 4. Within ten days from the recording of such order, plan and estimate, the board shall cause to be filed in the superior court of the county in which such proposed public improvement or the major part thereof is situated a petition on behalf and in the name of the body politic undertaking such improvement, to establish its right to take the property described in the order and, if betterments are to be assessed, to assess the same on account of the special benefits to be derived from the improvement, and to determine the compensation and damages to be paid, the area to be assessed and the amount of the benefits to be made the basis of assessments. The petition shall contain a copy of the order and estimates, and shall designate the registry or registries of deeds in which the order, plan and estimate have been recorded as provided in section three. The proceeding thus instituted shall be in rem against the land to be taken, damaged or assessed, but every person appearing of record to have an interest in any of said land at the time of the adoption of the order shall be made a party respondent. The court shall issue an order of notice to all of said respondents, returnable at any return day which occurs thirty days or more after the filing of the petition, which shall be served upon all respondents who are residents of the commonwealth or can be found therein in the manner prescribed for serving a writ of summons in civil actions, and upon all other parties by posting a copy thereof on each parcel of land to be taken, damaged or assessed and by sending a copy thereof by registered mail to each of said parties whose address is known, at least twenty days before said return day. Persons not in being, unascertained or unknown who may have an interest in any of such land shall be made parties respondent by such description as seems appropriate, and service may be made on such persons by publication, in such manner as the court may order.
Chapter 80A: Section 5. Answer Section 5. Any of said respondents, and any other person claiming an interest in any of the land to be taken, damaged or assessed by or on account of said improvement, may appear and file an answer within thirty days after the return day of the petition. In such answer he may (1) deny the right of the petitioner to make the improvement, or to take or damage his land, (2) deny the right of the petitioner to levy an assessment upon his land, (3) impugn the validity or regularity of the proceedings for establishing the improvement, taking property by eminent domain or assessing betterments therefor so far as any absence of such validity or regularity may affect the legality of the taking or damaging of his land, or of the assessment of betterments thereon, in which case he shall specify the invalidity or irregularity relied on, (4) deny the sufficiency of the compensation or damages allotted to him in the estimate of the board, in which case he shall state the amount of compensation or damages claimed by him, (5) deny that his property will receive benefit or advantage, other than the general advantage to the community, from the establishment of the improvement, in the amount stated in the estimate, in which case he shall state the value of such benefit or advantage, if any, which he admits his property will receive.
Chapter 80A: Section 6. Default judgments; appointment of guardians Section 6. The court shall, on motion of the petitioner, enter a default against all persons served with process or who otherwise appear to have seasonably received personal notice of the petition and who have not appeared and answered within the time prescribed. The court shall appoint one or more disinterested persons to act as guardian or guardians ad litem for minors, for persons under disability, and for all persons not in being, unascertained, unknown or out of the commonwealth, who have been named or described as parties respondent and for whom no duly authorized person has appeared and answered, and such guardian or guardians ad litem shall be allowed thirty days from his or their appointment to appear and answer on behalf of the persons whom he or they represent.
Chapter 80A: Section 7. Hearing; judgment Section 7. If any person in his answer denies the right of the petitioner to make the improvement or to take or damage his property, or to levy an assessment thereon, or impugns the validity or regularity of the proceedings, the court shall forthwith hear and determine the issue thus raised, and may order the petition dismissed or may enter an order establishing the right of the petitioner to take the real estate, or interest therein, described in the order for the purpose therein stated and to assess betterments as therein set forth, or may enter such other order as law and justice may require. If the court does not order the petition dismissed, and one or more of the respondents allege exceptions or appeal to the supreme judicial court or the matter is reported to the supreme judicial court, further proceedings shall not be stayed unless the justice who heard and determined the matter so directs. If no such issue is raised by any person in his answer, the court shall, on motion of the petitioner, enter an order establishing the right of the petitioner to take the real estate, or interest therein, described in the order for the purpose therein stated and to assess betterments as therein set forth. An order under this section establishing the right of the petitioner to take property or to assess betterments shall be final and conclusive as to the validity of the proceedings up to the date of the adoption of such order.
Chapter 80A: Section 8. Arbitration of disputes; appointment of commissioners Section 8. If the court shall enter an order establishing the right of the petitioner to take the real estate, or interest therein, described in the order for the purpose therein stated and to assess betterments as therein set forth, and any person has in his answer denied the sufficiency of his compensation or damages as estimated in the order under section three or has denied that his property will receive benefit or advantage in the amount estimated therein, the court shall appoint not more than three disinterested persons as commissioners to hear and determine the issues thus raised. The provisions of law in regard to auditors shall so far as apt apply to such hearing, and all controversies as to the amount of compensation, damages and betterments arising out of the same petition shall be referred to the same commissioners. The commissioners shall hear the parties as speedily as may be and shall thereafter file a draft report with the clerk of the court and shall send notice of such filing to the several parties. The commissioners shall not determine the compensation or damages to which any person is entitled to be greater than as alleged by him in his answer, nor less than as estimated by the board; nor shall they determine the benefit to any parcel of land to be less than as admitted by the owner in his answer nor more than as estimated by the board.
Chapter 80A: Section 9. Redetermination of damages; procedure Section 9. Any person aggrieved by the determination of the commissioners with respect to his compensation or damages may have a redetermination thereof by a jury by making application therefor within twenty days after the sending of the notice of the filing of the commissioners’ draft report. The application may be placed on the trial list of the next ensuing sitting of the court with jury in the county and heard and determined in the same manner as other civil cases and may be advanced for speedy trial; but if there are two or more such applications with respect to a particular public improvement which cannot be heard forthwith without unduly delaying the trial of other civil cases, the court may direct that a special jury be summoned to hear and determine all such applications. The administrative justice for the superior court department shall preside or designate a justice sitting in said department to preside over the sittings of such special jury, who shall have in the hearing and determination of such applications all the powers of a justice appointed to said department presiding over the trial of an ordinary civil action. The award of the commissioners shall be prima facie evidence of the compensation or damages to which the applicant is entitled, and the jury shall not award compensation or damages to any person in a greater amount than as alleged by him in his answer nor less than as estimated by the board. If the jury does not agree upon a verdict, or if the verdict is set aside, the applicant shall be entitled to a new jury from time to time until a verdict has been rendered and established; but he may at any time, upon terms, waive his right to a trial by jury and accept the compensation or damages awarded by the commissioners.
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