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

Section 44. (a) The division of highways may provide functional replacement of real property in public ownership whenever the division has acquired such property, in whole or in part, under this chapter or when such property is significantly and adversely affected as a result of the acquisition of property for a highway or highway-related project and whenever 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) Whenever the division determines it is necessary that a utility or utility facility, as defined under federal law, be relocated because of construction of a project which is to be reimbursed federally, 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. The commonwealth shall reimburse the owner of such utility or utility facility for the cost of relocation subject to the limitations in subsections (e) and (f) and in accordance with the following formula: (1) for any utility facility that is to be reimbursed federally, in whole or in part, the division shall reimburse the owner to the extent that the cost of relocating the utility facility is reimbursed by the federal government; and (2) for the relocation of any utility facility,the cost of which exceeds $50,000, and that does not qualify for federal reimbursement, the division may reimburse the owner in accordance with the owner’s ability to meet the following schedule: if the utility performs the relocation in a manner consistent with the division’s policies and not later than the target date established by the division for the project, the division shall reimburse the utility at least 50 per cent but not more than 80 per cent of the costs of relocating the utility facility. Failure to comply with an order from the department shall be subject to enforcement under chapter 81.

(c) Any relocation of facilities carried out under 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) The total cost to the commonwealth for reimbursements for utility relocations under this section that are not reimbursed federally in whole or in part shall not exceed $25,000,000 annually and shall not be credited toward the costs of the annual statewide road and bridge program.

(f) A utility relocation shall be eligible for reimbursement under 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.