Mass. Gen. Laws ch. 166, sec. 22D — MA Code / Part I / Title XXII / Chapter 166 / Section 22D
Removal of overhead wires; sequence; replacement; fines and penalties
Status: in_force

Section 22D. After a report has been filed under section twenty-two B, the municipality may adopt an ordinance or by-law which shall require a utility to remove its poles and overhead wires and associated overhead structures which are located upon, along or across any public way or ways within all or any part or parts of the municipality. Any such ordinance or by-law shall specify whether it applies to all of the municipality or only to a part or parts thereof and, if only to a part or parts, shall describe such part or parts with reasonable certainty by reference to the names of any way or ways to all or any designated portions thereof to which it applies, by reference to a map, or by other suitable means. Such ordinance or by-law may specify in whole or in part the sequence which any utility shall follow in removing its poles and overhead wires and associated overhead structures by specifying the part or parts of the municipality in which removal shall first be effected, then the part or parts in which removal shall next be effected. Any utility which fails to remove any poles and overhead wires and associated overhead structures as required by such ordinance or by-law shall be punished by a fine of not less than one thousand dollars and not more than five thousand dollars for each consecutive fifteen day period during which such failure continues; provided, however, that no utility shall be deemed to have violated any such ordinance or by-law, provided that (a) if replacement facilities for poles and overhead wires and associated overhead structures required to be removed will be needed in order for it to continue its service, it shall within sixty days after the effective date of such ordinance on by-law petition pursuant to section twenty-two for permission to erect or construct under the public ways of said municipality replacement facilities for said poles and overhead wires and associated overhead structures, and (b) it shall prepare and file with the board of selectmen or city council of the municipality a plan (which shall be consistent with any removal sequence specified in such ordinance or by-law) for the removal of such poles and overhead wires and associated overhead structures and, if needed for the continuation of its service, for their replacement with underground facilities, and (c) in each calendar year beginning with the calendar year next following the effective date of such ordinance or by-law and until all such overhead wires and associated overhead structures shall have been removed, it shall, in carrying out such plan, allocate and expend for the direct cost of demolition and construction (over and above the reasonable value of any salvage) an amount which shall be not less than two per cent of its gross revenue or in the case of a distribution company as defined in section 1 of chapter 164, 7 per cent of retail delivery revenues derived during the next preceding calendar year from its customers in said municipality; provided, however, it may carry over as a credit allocable to any one or more subsequent years any amount expended in any year exceeding said two per cent of its gross revenue or in the case of a distribution company as defined in section 1 of chapter 164, 7 per cent of retail delivery revenues, but any utility may receive interest at the rate set by the department for customer security deposits; and (d) it shall, on or before the last day of March in each year, file with the board of selectmen or city council of such municipality a statement signed, under the penalties of perjury, by its treasurer setting forth in detail: the amounts spent by it during the immediately preceding calendar year in carrying out said plan, the purposes for which such expenditures were made; and the gross revenue or in the case of a distribution company as defined in section 1 of chapter 164, the retail delivery revenues derived from its customers in said municipality during the immediately preceding calendar year; and provided, however, that no utility which enters into a cooperation agreement under section twenty-two E shall be deemed to have violated said ordinance or by-law during the term such payments are to be made, so long as said utility shall not be in default of said cooperation agreement. If any such ordinance or by-law, provides, any utility in providing replacement facilities for any poles and overhead wires and associated overhead structures required to be removed shall install customer's service facilities. Any sums expended by any utility in installing such customer's service facilities in compliance with such ordinance or by-law shall be deemed to have been expended in carrying out the plan of such utility, referred to in this section, for the removal of such poles and overhead wires and associated overhead structures, and for their replacement by underground facilities.

Section 22D. After a report has been filed under section twenty-two B, the municipality may adopt an ordinance or by-law which shall require a utility to remove its poles and overhead wires and associated overhead structures which are located upon, along or across any public way or ways within all or any part or parts of the municipality. Any such ordinance or by-law shall specify whether it applies to all of the municipality or only to a part or parts thereof and, if only to a part or parts, shall describe such part or parts with reasonable certainty by reference to the names of any way or ways to all or any designated portions thereof to which it applies, by reference to a map, or by other suitable means.

Such ordinance or by-law may specify in whole or in part the sequence which any utility shall follow in removing its poles and overhead wires and associated overhead structures by specifying the part or parts of the municipality in which removal shall first be effected, then the part or parts in which removal shall next be effected.

Any utility which fails to remove any poles and overhead wires and associated overhead structures as required by such ordinance or by-law shall be punished by a fine of not less than one thousand dollars and not more than five thousand dollars for each consecutive fifteen day period during which such failure continues; provided, however, that no utility shall be deemed to have violated any such ordinance or by-law, provided that (a) if replacement facilities for poles and overhead wires and associated overhead structures required to be removed will be needed in order for it to continue its service, it shall within sixty days after the effective date of such ordinance on by-law petition pursuant to section twenty-two for permission to erect or construct under the public ways of said municipality replacement facilities for said poles and overhead wires and associated overhead structures, and (b) it shall prepare and file with the board of selectmen or city council of the municipality a plan (which shall be consistent with any removal sequence specified in such ordinance or by-law) for the removal of such poles and overhead wires and associated overhead structures and, if needed for the continuation of its service, for their replacement with underground facilities, and (c) in each calendar year beginning with the calendar year next following the effective date of such ordinance or by-law and until all such overhead wires and associated overhead structures shall have been removed, it shall, in carrying out such plan, allocate and expend for the direct cost of demolition and construction (over and above the reasonable value of any salvage) an amount which shall be not less than two per cent of its gross revenue or in the case of a distribution company as defined in section 1 of chapter 164, 7 per cent of retail delivery revenues derived during the next preceding calendar year from its customers in said municipality; provided, however, it may carry over as a credit allocable to any one or more subsequent years any amount expended in any year exceeding said two per cent of its gross revenue or in the case of a distribution company as defined in section 1 of chapter 164, 7 per cent of retail delivery revenues, but any utility may receive interest at the rate set by the department for customer security deposits; and (d) it shall, on or before the last day of March in each year, file with the board of selectmen or city council of such municipality a statement signed, under the penalties of perjury, by its treasurer setting forth in detail: the amounts spent by it during the immediately preceding calendar year in carrying out said plan, the purposes for which such expenditures were made; and the gross revenue or in the case of a distribution company as defined in section 1 of chapter 164, the retail delivery revenues derived from its customers in said municipality during the immediately preceding calendar year; and provided, however, that no utility which enters into a cooperation agreement under section twenty-two E shall be deemed to have violated said ordinance or by-law during the term such payments are to be made, so long as said utility shall not be in default of said cooperation agreement.

If any such ordinance or by-law, provides, any utility in providing replacement facilities for any poles and overhead wires and associated overhead structures required to be removed shall install customer's service facilities. Any sums expended by any utility in installing such customer's service facilities in compliance with such ordinance or by-law shall be deemed to have been expended in carrying out the plan of such utility, referred to in this section, for the removal of such poles and overhead wires and associated overhead structures, and for their replacement by underground facilities.