Private ways, public access

Newton traffic engineer Clint Schuckel: "A lot of times, private ways are very bumpy with a lot of potholes. A lot of times, the people who live there like that. It's a traffic-calming measure." (The Boston Globe/file 2005)

I chuckle as I write this, for Hammondswood Road is in a very nice section of Newton. According to the assessors' office, the average Hammondswood home is worth $1.2 million. Don't see much danger in that.

Nonetheless, I'm always a bit wary when traveling down the street. For one thing, the pavement is in absolutely horrible shape, with more ruts and potholes than you can count. But what really bothers me is that while Hammondswood Road looks like any other street, it's legally a private way, and I'm not entirely sure what that means.

Am I trespassing if I drive down it? Does a different speeding limit apply? Should I turn my car around and find another route?

This week, we look at a true driving oddity, the private way.

The law says
I'm picking on Hammondswood Road, but private ways are everywhere: I've got one three houses down from me in Somerville, and beach and rural communities can be loaded with them. For the most part, such roads are dead ends or cul-de-sacs with a smattering of homes, the byproducts of housing subdivisions. They're certainly convenient for developers, who save time by forgoing the municipal approval process needed to establish a public way.

Developers also save money, as private roads don't need to meet the construction standards of a public street.

This last point explains why Hammondswood Road is in such bad shape. The city of Newton is not responsible for the upkeep. Instead, the homeowners are.

"A lot of times, private ways are very bumpy with a lot of potholes," said Clint Schuckel, Newton's traffic engineer. "A lot of times, the people who live there like that. It's a traffic-calming measure."

It's an interesting theory: Make your street so inhospitable that no one will want to traverse it. But what about legal barriers to entry? Can private road dwellers stop outsiders from driving down their block? Are private ways closed to the general public?

You wouldn't believe how tough it was to get a straight answer on this.

Some traffic officials hadn't a clue. Other sources, including a few police departments, told me that if residents on a private way elect to post "No Trespassing" signs at the beginning of the street, then yes, the street is closed to outsiders.

Thank goodness that Mark Rumley, Medford's city solicitor, knew the correct law.

"Residents cannot put up a 'No Trespassing' sign at the front of a private way," he said. "The public has the right to pass on it. People think of 'private' in the sense of something being exclusive. But it's really private in that it has not been accepted as a public way, with public standards. It does not mean exclusivity. Being a way, it's open for the public to pass.

"Do the people along the private way have rights in the private way? Yes," Rumley continued. "But those rights are subject to the right of the public to traverse the way. Some people will say to you that as abutters, we own to the middle of the way. When they say that, ask them to go to the assessors' office and see if the additional footage into the middle of the street is on their tax bill. I can tell you: No, it isn't. And do they want it included? No, they don't."

Residents on a private road do have the right to create their own parking rules, however. If "No Parking" signs are posted and you disobey, residents can have your car towed for trespassing. You can't, though, get a parking ticket, as it's not town or city property.

"When the winter parking ban is on," said Sergeant Joseph Deignan, traffic chief for the Watertown police, "I have two or three private streets that attract abutters" as ideal spots to park a car. "I get called to come mediate, but I say I have no enforcement on a private way. If the car is obviously abandoned - missing tires or something - I can tow it under the abandonment law. But I can't ticket it."

Police, in fact, can hardly enforce any driving regulations on private roads, because they are not owned by the state or by municipalities. (There are rare exceptions, such as drunken driving arrests.)

"Technically there are no rules of the road for private roads. There are certain specifics that they have to abide by, but in general, there's not much," said Jennifer Mehigan, spokeswoman for Boston Mayor Thomas Menino.

Schuckel said that private ways must be open to police and emergency vehicles, as well as snowplow trucks, so residents can't just park their cars in the middle of the street, or otherwise block the path with a sawhorse or gate.

The same is true for private alleys in the Back Bay and Beacon Hill, Mehigan said. (If the private way is essentially a driveway leading to a single property - a condo complex, for example - that owner can erect a gate.)

Municipalities do have the right to create rules for private ways if public safety is called into question. For example, Newton's parking ban on residential streets during Boston College football games extends to Hammondswood Road, Shuckel said.

Municipalities also have the right to fill potholes on private ways, again in the name of safety, but don't necessarily need to provide other standard services, most notably trash pickup.

"The city plows you in Newton, runs the street lights, and collects the trash," said Schuckel.

"The only disadvantage to living on a private street here is the condition of the road. It can be poor, and in most cases it has no sidewalk, and when it rains there are no storm drains to collect the water. You might want a four-wheel drive if you're living there."