Court Rejects Suit Requiring Harwich To Upgrade Roads

By: William F. Galvin

Topics: Development , Roads, highways and transportation

Harwich news.

HARWICH — A Barnstable Superior Court ruling has upheld the town’s position that it does not have to maintain, repair or improve portions of Seth Whitefield and Round Cove roads. Resident Robert Fratus Jr. asked selectmen on a couple of occasions last spring to improve the roads.

During those discussions, a number of neighbors protested against the request to improve the base along the dirt road section of Whitefield Road and widen Round Cove Road. In one session, a petition bearing 70 signatures was presented to selectmen claiming such improvements would ruin the charter of the area, increase traffic and adversely impact a fragile ecosystem.

The roads are located in the Six Ponds District, which was created through a district of critical planning concern process by the Cape Cod Commission and the town. The roads serve as access to Hawksnest State Park, a wilderness area that includes several ponds.

Fratus created a subdivision along the road and was planning to build a house. He entered into a license agreement with the town that stated any improvements to the road were his financial responsibility. But he argued with selectmen that Massachusetts General Law obligates the town to cover the cost of repairs to public ways.

Last May, Selectmen voted not to make any improvements to the two roads.

Fratus shortly thereafter filed a lawsuit seeking a declaration that the town is obligated to maintain, repair or improve portions of the roads and that the work must be done in accordance with certain minimum standards. The suit asked the court to require that town maintain, repair and improve the two roads to a width of not less 20 feet and to level and surface the roads with no less than six inches of suitable material. Fratus was seeking the use of T-base, a crushed gravel base.

Fratus filed a motion for summary judgment, which the town opposed; the town also moved for summary judgment.

The decision issued by Judge Thomas J. Perrino reads, “Under current law, an abutter to a public way does not have a private right of action to compel a municipality to make repairs to the public way. Nor do the statutes relied upon by the plaintiff confer a private right of enforcement of the obligations imposed upon a municipality by those statutes. Even if such private right of action exists, relief in the nature of [an order from the court] is discretionary.” The judge denied the request for an order.

In denying Fratus's summary judgment petition, Perrino allowed town's motion for summary judgment to stand.