Mass. Gen. Laws ch. 164, sec. 43 — MA Code / Part I / Title XXII / Chapter 164 / Section 43
Determination by department of purchase price; tender of deed; acquisition upon failure to tender
Status: in_force

Section 43. If a town which votes to establish a municipal lighting plant fails, within one hundred and fifty days from the passage of the final vote required by section thirty-five or thirty-six, to agree, as to price or as to the property to be included in the purchase, with any person or municipality engaged at the time of the first vote required by said section thirty-five or thirty-six in generating or distributing gas or electricity for sale for lighting purposes in such town and electing to sell, either such town or such person or municipality may apply to the department within thirty days after the expiration of said one hundred and fifty days for a determination as to what property ought in the public interest to be included in the purchase and what price should be paid, having in view the cost of the property less a reasonable allowance for depreciation and obsolescence, and any other element which may enter into a determination of a fair value of the property so purchased, but such value shall be estimated without enhancement on account of future earning capacity or good will, or of exclusive privileges derived from rights in the public ways; and thereupon the department, after notice to the parties, shall give a hearing thereon and make the determination aforesaid. Such property shall include such portion of the property of such person or municipality within the limits of such town as is suitable for, and used in connection with, the generation or distribution of gas or electricity within such limits; provided, that such purchase shall include both a gas and electric lighting plant only if a single corporation owns or operates both such plants. Such price shall include damages, if any, which the department finds would be caused by the severance of the property proposed to be included in the purchase from other property of the owner. If any such property is subject to any mortgages, liens or other encumbrances, the department in making its determination shall provide for the deduction or withholding from the purchase price, pending discharge, of such sum or sums as it deems proper. If within thirty days after such determination shall have been made by the department, the owner shall notify the town of its acceptance of the determination as made by the department, and within a further period of thirty days shall tender a good and sufficient deed of conveyance to the city or town clerk of the property required by the department to be purchased, and shall then place said deed in escrow, the town shall have sixty days in which to accept or reject said tender, and if it accepts shall have a further period of sixty days in which to pay to the owner the price determined as hereinbefore provided. Such acceptance or rejection in case of a city shall be by vote of its city council, or its commissioners if its government consists of a commission, and in case of a town shall be by vote at a town meeting. A rejection of the tender shall operate as a rescission of all votes theretofore passed for the establishment of a municipal lighting plant. Should the owner not file such acceptance and tender within the time so limited, the town may proceed to construct or otherwise acquire a municipal plant without further attempt to acquire the plant of such owner or any part thereof, provided, however, that in case of a city such action is authorized by vote of its city council, or of its commissioners if its government consists of a commission, and that in case of a town such action is authorized by vote at a town meeting.

Section 43. If a town which votes to establish a municipal lighting plant fails, within one hundred and fifty days from the passage of the final vote required by section thirty-five or thirty-six, to agree, as to price or as to the property to be included in the purchase, with any person or municipality engaged at the time of the first vote required by said section thirty-five or thirty-six in generating or distributing gas or electricity for sale for lighting purposes in such town and electing to sell, either such town or such person or municipality may apply to the department within thirty days after the expiration of said one hundred and fifty days for a determination as to what property ought in the public interest to be included in the purchase and what price should be paid, having in view the cost of the property less a reasonable allowance for depreciation and obsolescence, and any other element which may enter into a determination of a fair value of the property so purchased, but such value shall be estimated without enhancement on account of future earning capacity or good will, or of exclusive privileges derived from rights in the public ways; and thereupon the department, after notice to the parties, shall give a hearing thereon and make the determination aforesaid. Such property shall include such portion of the property of such person or municipality within the limits of such town as is suitable for, and used in connection with, the generation or distribution of gas or electricity within such limits; provided, that such purchase shall include both a gas and electric lighting plant only if a single corporation owns or operates both such plants. Such price shall include damages, if any, which the department finds would be caused by the severance of the property proposed to be included in the purchase from other property of the owner. If any such property is subject to any mortgages, liens or other encumbrances, the department in making its determination shall provide for the deduction or withholding from the purchase price, pending discharge, of such sum or sums as it deems proper.

If within thirty days after such determination shall have been made by the department, the owner shall notify the town of its acceptance of the determination as made by the department, and within a further period of thirty days shall tender a good and sufficient deed of conveyance to the city or town clerk of the property required by the department to be purchased, and shall then place said deed in escrow, the town shall have sixty days in which to accept or reject said tender, and if it accepts shall have a further period of sixty days in which to pay to the owner the price determined as hereinbefore provided. Such acceptance or rejection in case of a city shall be by vote of its city council, or its commissioners if its government consists of a commission, and in case of a town shall be by vote at a town meeting. A rejection of the tender shall operate as a rescission of all votes theretofore passed for the establishment of a municipal lighting plant.

Should the owner not file such acceptance and tender within the time so limited, the town may proceed to construct or otherwise acquire a municipal plant without further attempt to acquire the plant of such owner or any part thereof, provided, however, that in case of a city such action is authorized by vote of its city council, or of its commissioners if its government consists of a commission, and that in case of a town such action is authorized by vote at a town meeting.