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Citizen Demands to Improve Public Ways Hit a Pothole

What relief is available to a citizen when the Town declines to make requested repairs to a public way? Not much, according to the Appeals Court in the case of Fratus v. Town of Harwich. The plaintiff petitioned the Town of Harwich to widen, harden, and resurface certain public ways in the area of his home, which he asserted were too narrow to be safe for travel and emergency access. The Board of Selectmen held a public hearing and denied the petition. The plaintiff then sued, seeking a declaratory judgment that the Town had a duty to make the requested improvements and an order in the nature of mandamus compellng the Town to do so.

You’ll recall from the discussion in the Mederi article on our blog that mandamus is not available when the governmental function that the plaintiff is trying to compel is actually discretionary in nature. The Appeals Court found that the decision to repair or improve roadways was clearly discretionary; so, the mandamus petition failed.

The plaintiff argued that the Town’s duty to make the requested repairs arose either from M.G.L. c.84, §1, or from M.G.L. c.82, 17. In relevant part, M.G.L. c.84, §1, provides that “[h]ighways and town ways…shall be kept in repair at the expense of the town in which they are situated, so that they may be reasonably safe and convenient for travelers…at all seasons.” M.G.L. c.82, §17, states that “the selectmen or road commissioners of a town may exercise original jurisdiction…of petitions for altering, relocating or making specific repairs upon a highway within the town limits.”

However, the Appeals Court found that there was no private right to sue the Town under M.G.L. c. 4, §1, that the provisions of M.G.L. c.82, §17 merely afforded the Town the discretion to consider and deny the petition, and that the plaintiff had no express or implied right under any statute to compel the Town to make road improvements. While there is no private right of action to compel improvements to public ways, M.G.L. c.84, §15, does provide persons who suffer bodily injury or property damage as a result of a defective roadway with a claim for damages against the municipality. The municipality’s discretion to decide when and to what extent repairs to public ways must be made is counterbalanced by the threat of municipal liability to a person injured while traveling a substandard public road.


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