Who is a member?
Our members are the local governments of Massachusetts and their elected and appointed leadership.
Public works functions are organized, managed and administered in many different ways in local government. Generally, functions that can be considered public works include the following:
Historically, the various public works functions are managed by elected officials such as highway surveyors, water and sewer commissioners, road commissioners, cemetery commissioners, park commissioners, tree wardens, and boards of public works. Some towns with a municipal electric and light commission have incorporated those functions into a department of public works as well.
Some towns maintain a work force to undertake various functions, while many contract for certain services from private vendors. In many towns, public works functions are overseen by a director of public works, who is appointed by and reports to the chief administrative officer or the Select Board.
The following are some statutes that relate to local public works functions:
For many years, towns have been developing methods of coordinating public works functions and consolidating functions into a department of public works or a department of public services. There has also been a movement in some cities and towns to consider establishing a separate governmental entity, governed by an independent commission, to manage the services and set rates. Towns may consider establishing an enterprise fund (see Chapter 5), which creates a separate accounting system for a municipal service for which a fee is charged in exchange for a specific service.
State laws governing maintenance and repair of roads date back to the early days of the Commonwealth, when cows and horse-drawn carriages accounted for most of the traffic on town streets. It is not surprising that many of the state’s highway laws now seem outdated.
Roads fall into two categories: public ways and private ways. Generally, public ways are open to unrestricted use by the public, and the town has taken responsibility for maintaining and repairing them through a formal acceptance process. Private ways are open for a limited use, usually providing access to homes. Both types of roads are open to traffic, but the difference can be quite significant to a town.
State law requires that public ways and railroad crossings “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.”12 Generally, private roads are the responsibility of the private owners to maintain, though towns may, by bylaw, establish procedures for making temporary (usually minor) repairs on private ways at the request of abutters.1 The bylaw must address several specific issues, including what percentage of abutters must petition for such repairs, whether betterment charges will be assessed, and the extent of the town’s liability due to damages caused by these repairs. Towns that accept the applicable section of state law14 may also vote to appropriate funds for the removal of snow and ice from private roads, generally for public safety purposes.
Typically, roads are laid out at the request of a subdivision developer. In accepting a subdivision street as a public way, the Select Board should ensure that the developer or the abutting landowners have conveyed ownership or an easement for the street to the town. Abutting property owners who want the town to take over maintenance and repair of a private way may petition the Select Board for its acceptance by Town Meeting as a public way.
Many older subdivisions, constructed when subdivision regulations were not necessarily rigorous with respect to road standards, have roads (private ways) that are in poor condition and require major drainage and pavement improvements. A town should consider the conditions under which it would consider acceptance of any road, as well as how any needed improvements would be made and who would assume the cost.
Not all private ways or subdivision roads are eventually accepted by the town. The acceptance process is technical and should be coordinated with town counsel and the head of the public works department, as well as the planning board.
State law15 provides for personal injury or property damage claims arising from defects in public ways due to a lack of repair or insufficient railings, but sets a $5,000 cap on municipal liability. (See Insurance and Liability section in Chapter 4.)
Towns have the authority to regulate the use of public and private ways, either by bylaw or by rules and regulations adopted by the Select Board. In most cases, rules and bylaws must be approved in advance by the state.
The Select Board, park commissioners, or the traffic commission or its director may make special regulations about the speed of motor vehicles and the use of motor vehicles on roads under their control. The use of vehicles may be prohibited altogether on certain roads. At the written request of the property owners, special regulations for private ways or private parking areas may be issued.
A roadway safety law that took effect in 2023 to improve safety for “vulnerable road users” establishes new passing requirements, requires safety equipment on specific state vehicles, clarifies key definitions, and clarifies a process for municipalities to reduce speed limits on roadways. The law defines “vulnerable road users” as, essentially, any user other than vehicles (e.g., pedestrians, road workers, bicyclists, skateboarders, etc.). The law governing the process for requesting reduced speed limits is Chapter 90, Section 18. Amendments to speed limits on town roads approved by the Select Board need certification from the Highway Division that the change is in the public’s interest. (Previously, such a change required certification from the Massachusetts Department of Transportation as well as the registrar of motor vehicles.) The law also allows Select Boards to petition the MassDOT to adjust speed limits on state highways within a town.
Separate state laws permit towns to make bylaws, and Select Boards to make rules, for the regulation of “carriages and vehicles” on town roads and to install traffic devices for the protection of schoolchildren. Towns may designate areas on town roads to be used as bicycle lanes, or close a public way during specified hours to promote recreation or sport, or set hours on public ways when sledding is permitted. Moving a building through a public way requires written permission from the Select Board or road commissioners.
In most towns, the Select Board or town manager appoints a parking clerk, who is under their direct control. The parking clerk coordinates the processing of parking notices in the town. The clerk may hire staff, organize divisions, or contract for services through competitive bidding. The parking clerk may also perform other municipal jobs, except for police functions. Some towns assign this role to the town clerk.
Various state laws permit towns to regulate where and when people may park. Towns that accept the applicable section of law may adopt traffic regulations authorizing the towing of illegally parked vehicles from roads under town control. Towns can also, by bylaw, require that designated parking spaces be provided for disabled veterans or handicapped people in public and private off-street parking areas. Towns may limit parking in front of houses and apartment buildings to the people living there as long as signs are posted.
Towns may appropriate money for the acquisition, installation, maintenance and operation of parking meters on town roads, but the location of the meters must be approved by the state.16 Under the same law, towns may also install parking meters in municipally owned or leased off-street parking lots.
The Select Board (or road commissioners) has general authority to establish, maintain and rebuild sidewalks. No sidewalk may be dug up or constructed without the board’s approval. In ordering construction of a new or permanent sidewalk, the Select Board or road commissioners may provide for special assessments on abutting property not exceeding one-half of the cost of the sidewalk. If the town bylaws so provide, the total amount assessed on any individual property may not exceed 1% of its assessed valuation. Assessments must be recorded with the Registry of Deeds.
Although many towns still rely on some use of private wells by homeowners, most towns in Massachusetts are served by one or more public water supply systems: municipal wells, reservoirs, or a combination of the two. There are also some communities serviced by private water utilities, which are subject to oversight by the Department of Public Utilities.
A public water supply is defined as a system that has at least 15 service connections or regularly serves an average of 25 or more people at least 60 days a year. This is the threshold for regulation by the federal Safe Drinking Water Act.
Except for communities receiving water service from the Massachusetts Water Resources Authority, any town may vote to establish and operate its own water supply and distribution system.17 Towns may purchase water from private companies or from other communities.
Towns with a public water supply may create a three-member board of water commissioners, or the Select Board may be authorized to act as the board. Some towns have used the process in state law to create a combined water and sewer commission. Towns also use the legislative special act process to create municipal water departments and combined water and sewer commissions.
Towns with their own water systems may construct and maintain dams, wells, reservoirs, pumping and filtration plants, buildings, standpipes, tanks, fixtures and other structures, as well as purification and treatment plants. The cost of purchasing, developing and enlarging public water supplies can be financed through the issuance of bonds. Some communities have adopted enterprise funds to ensure that the revenue received for services is sufficient to meet the operating costs and capital expenditures of the water or water-sewer department.
The State Revolving Fund (SRF) loan program offers affordable financing options to cities, towns and public water utilities to improve water supply infrastructure and drinking water safety. The program helps with federal and state water quality requirements of wastewater treatment plants and collection systems; issues related to watershed management priorities, stormwater management, and green infrastructure; and, financial assistance to communities to make available loans to homeowners with septic system problems.
The Department of Environmental Protection has broad authority for monitoring and enforcing water quality standards for public water supplies and for approving sources of water, water systems, and treatment facilities. MassDEP regularly tests public water supplies for contaminants. If any water supply fails to meet the standards for drinking water safety and quality, MassDEP can require treatment or direct that the public be notified. Water commissioners may impose additional controls on a water system, subject to bylaws or any rules and regulations approved by the town.
The Water Management Act regulates water withdrawals in Massachusetts. Each public water supply (municipality or district) must obtain a permit from MassDEP authorizing the amount of water available to the municipality. MassDEP has grant programs for acquiring land, addressing contamination, and constructing filtration plants.
Private wells are under the jurisdiction of local boards of health (see Chapter 10). For instance, owners of buildings that need a source of water where a municipal water supply is not available must receive a permit from the local board of health certifying that there is an adequate supply of potable water at the site. MassDEP can provide boards of health with assistance, on request, but the agency has no direct authority over private wells. Some local boards have promulgated well regulations.
The Water Management Act empowers MassDEP to deal with water supply shortages and emergencies. Each community must have a water resources management plan that incorporates conservation standards based on guidelines outlined by the Massachusetts Water Resources Commission.
MassDEP also has extensive authority to protect groundwater from pollution. MassDEP approval is needed for the discharge of most pollutants, including commercial, industrial and agricultural waste, sewage and runoff.
Municipalities are subject to the 1972 federal Clean Water Act and its rules requiring permits for discharges of any pollutants into waters of the United States. The primary focus of the National Pollutant Discharge Elimination System permit program is pollutants in industrial process water and discharges from municipal sewage treatment plants. There is also a regulatory program that addresses sources of stormwater discharges from large and medium municipal separate storm sewer systems (for cities with populations of 100,000 or more), from small municipal separate storm sewer systems, and construction activities disturbing between one and five acres of land. Public and private entities are required to develop comprehensive stormwater management programs focused on water quality. This obligation affects many municipalities, industries and large landowners.
Municipalities with municipal separate storm sewer systems (MS4) that have been designated as regulated by the U.S. Environmental Protection Agency must comply with all EPA- and MassDEP-promulgated MS4 standards. These MS4 plans typically deal with treatment standards, anti-degradation, retrofitting treatment, low-impact development, wetlands construction and restoration, erosion and sedimentation control, pavement types, and natural alternatives. There are more than 250 MS4 communities in Massachusetts. (For more information, visit the MassDEP Stormwater Permitting website.)
MassDEP has issued regulations governing stormwater discharges. Stormwater is also expected to be controlled in permits required under the state Clean Water Act for both surface discharges and groundwater discharges; under the Wetlands Protection Act and the tidelands and waterways statutes; and in the various certification reviews for activities in Massachusetts seeking federal permits and grants, such as water quality certification and coastal zone consistency determinations.
The board of health is the policy-making board for solid waste issues (see Chapter 10), though the responsibility for managing a transfer station or landfill typically falls to the department of public works, under the purview of the Select Board, and the town’s Select Board or chief executive would manage any contracts for trash collection and recycling programs. The board of health must approve sites for solid waste disposal facilities and hazardous waste facilities, and a board permit is needed for the collection and transportation of garbage, or other offensive substances, through town streets.
The Massachusetts Department of Environmental Protection is responsible for establishing rules for the siting, design, operation and maintenance of solid waste management facilities, including landfills, transfer stations, municipal waste combustors (waste-to-energy) and other solid waste handling facilities. Regulations are intended to prevent air, land and water pollution. Such conditions must be abated when and where they occur. The MassDEP is also responsible for establishing requirements for recycling, composting and conversion (e.g., anaerobic digestion) operations that handle recyclable or organic materials. Under current state regulations, it is difficult to find suitable sites for waste disposal, or even facility expansion. Landfills cannot be located in or near wetlands, in areas prone to flooding, or in proximity to either public or private water supplies.
The MassDEP produces 10-year, statewide solid waste master plans, which are policy documents used to guide planning and regulations. The current plan, “Working Together Toward Zero Waste,” addresses waste management, waste reduction and waste diversion, with a strong emphasis on recycling, composting and reuse in order to reduce the amount of waste that must be transported to landfills or incinerated. The MassDEP has helped many communities promote household recycling programs, and works with industry groups to promote markets for recycled products. (For more information, visit the MassDEP’s Recycling & Waste Management website.)
The Mercury Management Act was enacted in 2006 to remove products containing mercury from the waste stream and to minimize the amount of mercury released into air and water from solid waste disposal facilities. The law is the first in Massachusetts to make product manufacturers responsible for collecting and recycling “end of life” mercury products and components that are sold or distributed in the state. Local boards of health often participate in the Mercury Recovery Program and manage collection sites for mercury-containing products.
The MassDEP’s comprehensive regulations, known as the Massachusetts Contingency Plan, set forth what municipal officials need to know about the reporting of hazardous waste sites, response actions and reports, cleanup standards, liabilities and fees, and legal defenses, as well as the presentation and pursuit of claims that cities or towns may have for cost recovery and property damages for which others are liable.
Chapter 21E applies to present and former owners and operators of sites, as well as those who generate, store, transport and dispose of oil and hazardous materials, but cities and towns may enjoy significant defenses in cases of land taken by eminent domain or acquired in good faith innocently, or land that is downstream of sources of contamination. Cities and towns may even have financial claims against the original sources and operators for cleanup reimbursement and property damages. Comprehensive federal and state laws and regulations govern the location and operation of hazardous waste facilities.
Municipalities are responsible for proper management of hazardous wastes and chemicals and toxic use reduction. Hazardous materials are regulated through the so-called “right-to-know” law, which requires cities and towns to respond to citizens’ requests for information about hazardous substances used by local employers in the course of their routine work. The town’s emergency response personnel also must be aware of potential hazards within town boundaries.
Underground tanks storing chemicals or petroleum products are regulated through MassDEP’s Underground Storage Tank Program, which regulates the design, installation, maintenance, monitoring and removal of tanks. MassDEP also administers a limited reimbursement program to assist in meeting the costs associated with the cleanup and removal or replacement of tanks.
Through ordinances and bylaws, cities and towns may adopt tougher underground storage tank standards than state and federal rules. Typically, these local rules authorize a local board or agency, such as the board of health or the fire department, to conduct an inventory of tanks in the municipality and require local registration of underground storage tanks. Several communities have required the replacement of older tanks. Some offer low-interest loans or other subsidies to assist with removal projects.
Massachusetts towns have considerable flexibility in the way they manage public parks, playgrounds and other recreational facilities. In some smaller towns, the Select Board serves as the board of park commissioners. A town may elect a board of park commissioners or authorize its planning board, department of public works, or road commissioners to perform those functions. The town manager or other chief administrative officer may have oversight over the parks, with local boards setting policy, planning events, and so forth.
Unless a town has elected a board of park commissioners or specifically authorized another agency to act as one, the Select Board is in charge of parks. If the Select Board serves as the board of park commissioners, the board has all the powers and duties granted by law to that body, including laying out and improving public parks and conducting recreation activities.18
If responsibility for parks and recreation is vested with other boards in town, the formal role of the Select Board in this area is more limited, but it is important for the Select Board to have a good working relationship with the board and staff responsible for parks and recreation. When residents call with complaints about park security or playground noise, Select Board members need to know who to go to in order to get the problem resolved.
Towns may appropriate money for a range of recreation-related purposes, including the construction and maintenance of swimming pools, municipal golf courses, skating rinks, gymnasiums and beaches.19 Upon acceptance of local-option legislation, a town may establish a revolving fund or enterprise fund to create self-sustaining recreation programs that are funded through program fees rather than by appropriation.20 Towns have considerable freedom to choose the recreational programs they will provide and the fees they will charge for the programs. The Community Preservation Act is another option to create a source of dedicated funding for certain kinds of recreational purposes. (See Chapter 8 for more on the CPA.)
Many towns have professional parks and recreation staff handling their day-to-day operations. The National Recreation and Park Association and the Massachusetts Recreation and Park Association are available to help towns hire qualified personnel. The Massachusetts Department of Transportation website has resources to help cities and towns in developing and constructing bikeways, bike lanes and bicycle parking facilities for commuter and recreational use.
A board of park commissioners has generally the same authority over roads and trees in parks as Select Boards, road commissioners and tree wardens have in other parts of town. The board may lay out and improve public parks, make rules about how town parks may be used, and appoint engineers, surveyors, clerks and other personnel to help with park maintenance. Subject to appropriation, a board of park commissioners also has the power to conduct programs and recreational activities at places other than public parks.21 A board of park commissioners also has the power to hire park police officers. Violations of park and playground rules and regulations may carry a fine of not more than $200.22
State law draws a distinction between public parks and playgrounds, which has implications for the way these lands may be managed. Land that was originally acquired for park purposes (including town commons) is generally recognized by law to be held for all members of the public, not just for residents of the town. For this reason, the Legislature has final authority over what is done with it. (See Article 97 of the Massachusetts Constitution.) Playgrounds, and/or land that was originally acquired for recreational purposes, are under the control of the town board or commission that has been so designated by Town Meeting, special act or home rule charter. State law gives the agency in charge of public playgrounds and recreation centers extensive authority to acquire, lease and use land and buildings for recreational activities.
Land for parks may be acquired by purchase, gift or eminent domain. Once a park is acquired, however, it takes an affirmative Town Meeting vote and a special act of the Legislature to sell, lease, or use it for any other purpose.
Towns may erect structures for shelter, refreshments and other purposes in parks of at least 100 acres, as long as they do not pose a fire hazard to buildings outside the park. Legislative approval is needed to build any structure larger than 600 square feet.23 Boards of park commissioners have the power to allow hunting in parks during hunting season.24
Natural bodies of water larger than 20 acres, known as “great ponds,” are generally open to the public for recreation, unless they are being used as a drinking water supply. The public must be given reasonable access to great ponds, but towns may make and enforce rules and regulations concerning fishing, hunting and boating. While motorboats, snowmobiles and other recreational vehicles are regulated by the Department of Fish and Game, towns may, by bylaw or regulation, limit or forbid their use on town land.25 Bylaws governing hunting and fishing are subject to the approval of the Department of Fish and Game. Bylaws governing the use of motorboats are subject to the approval of the Massachusetts Department of Environmental Protection.26