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The 189th General Court of the Commonwealth of Massachusetts

Section 44: Functional replacement of real property in public ownership; relocation of utility or utility facility

Section 44. (a) The division may provide functional replacement of real property in public ownership if the division has acquired such property, in whole or in part, under this chapter or if such property is significantly and adversely affected as a result of the acquisition of property for a highway or highway-related project or if the division determines that functional replacement is necessary and in the public interest. For the purposes of this section, ''functional replacement'' shall mean the replacement, pursuant to chapter 7, requiring authorization of the general court prior to disposition of real property, including either land or facilities thereon, or both, which shall provide equivalent utility. For the purposes of this section ''real property in public ownership'' shall mean any present or future interest in land, including rights of use, now existing or hereafter arising, held by an agency, authority, board, bureau, commission, department, division or other unit, body, instrumentality or political subdivision of the commonwealth. This section shall not constitute authorization by the general court as required by said chapter 7.

(b) If the division determines it is necessary that a utility or utility facility, underground or otherwise and as defined under federal law, be relocated because of construction of a project which is to be reimbursed federally, in whole or in part, or which is to be paid by the commonwealth, in whole or in part, such facility shall be relocated by the division or by the owner thereof in accordance with an order from the division. Failure to comply with an order from the division shall be subject to enforcement under chapter 81. The division shall reimburse the owner of such utility or utility facility for the cost of relocation subject to the limitations in subsection (e) and in accordance with the following formula: for any utility facility that is to be reimbursed federally, in whole or in part, and for any utility facility that does not qualify for federal reimbursement, the division shall reimburse the owner at least 50 per cent of the costs of relocating the utility facility; in no case shall a utility be reimbursed for any type of betterment; reimbursement is for relocation costs only. For purposes of this section, betterment shall be defined in accordance with the definition that is set forth for that term in the division's policies.

(c) Any relocation of facilities carried out pursuant to this section which is not performed by employees of the owner shall be subject to sections 26 to 27F, inclusive, of chapter 149.

(d) Notwithstanding any general or special law to the contrary, any utility facility that is required to be relocated because of the construction of a project federally funded under the Federal-Aid Highway Act of 1982 and the Federal-Aid Highway Act of 1987 may be relocated temporarily above ground during the construction of the project.

(e) A utility relocation shall be eligible for reimbursement pursuant to this section only if it is completed to the satisfaction of the division within target dates established by the division and in accordance with design criteria set forth by the division for the relocation in a manner that facilitates the timely completion of the affected project.