Boston weighs letting city crews fill potholes on private ways with asphalt

Boston city councilors weighed an ordinance Oct. 15 that would have city crews fill potholes on private ways, the privately owned streets found across the city, instead of closing residents' 311 requests. The Government Operations Committee took no vote at the virtual hearing.

City Councilor Brian Worrell (District 4), the lead sponsor, and City Councilor Erin Murphy (at-large) filed the ordinance, docket 0807, which was referred to the committee April 15. Worrell said it would add asphalt to the temporary repairs the city code lets city employees make, and have crews fill the potholes automatically.

Daniel Nee, the city's superintendent of street operations, said a state law “prohibits us from using public funds on private property.” Crews patch private ways now only when emergency vehicles or trash trucks need to get through, he said.

The question is how much the city can do for private-way residents, who Worrell said pay no less in taxes than anyone else, without breaking that law or taking on costs Nee put in the hundreds of millions of dollars.

“This ordinance looks to just do a temporary fix, give the city the ability to use asphalt.”

What is a private way?

A private way can look and act like a regular street, Nee said, but technically it is private property. The people who live along it, called abutters, own the frontage halfway into the road, said City Councilor Benjamin Jacob Weber (District 6).

Nee, who said he has lived on a private way since 1978, said he and his neighbors share theirs: “We also have to clean it. We also have to shovel it.”

Owners are responsible for resurfacing, sidewalks and bringing the street up to code, which can include streetlights, at a cost that can reach six figures, Worrell said. Many buy without knowing that, he said.

Some residents who file 311 requests may have been misled by a real estate agent or may just see a road that “looks like a regular street,” Nee said. Then they say, “The city should be fixing it, I pay taxes,” he said.

To become a public street, a private way goes through a betterment process. More than 50% of homeowners must petition, residents vote, city engineers survey the street, and owners are assessed for the cost, Nee said.

The street must then meet city specifications, including accessible sidewalks, drainage, lighting and a width of 53 feet, which many alleys lack. Only four streets have gone through the process in the past 15 years, Nee said.

How are potholes fixed now?

When a 311 pothole report on a private way reaches a district yard supervisor, the case is usually closed with a note that abutters are responsible for repairs, Nee said.

If the supervisor decides a hole would stop an ambulance, a ladder truck or a residential trash truck, crews patch it anyway, Nee said. The resident still gets the closing notice, and the city does not bill for the patch.

Nee said that public-safety test is how crews feel “comfortable potentially actually breaking a law and doing repairs.” Crews already use asphalt on paved private ways, he added: “That might be another rule that I've been breaking for years.”

Nee said 99% of private-way potholes come from water, so patches often fail again. Without water or soil problems underneath, he said, an asphalt patch can last “20, 30 years easily.” On gravel roads, he said, asphalt would cause problems.

What councilors said

Worrell said private ways connect to main roads and are used by the public. Residents on them are “not paying less in taxes to live on a private way,” he said.

City Councilor Gabriela Coletta Zapata (District 1), the committee chair, said, “I love the idea of this,” but raised questions about cost, noting many private ways in Charlestown and East Boston. “I wouldn't want our tax dollars to continuously go into band-aids rather than thinking about more holistically how we can better the street in its entirety,” Coletta Zapata said.

The chair said permanent resurfacing would trigger Americans with Disabilities Act requirements that routine pothole work does not. Residents of Geneva Street in East Boston declined to convert their private way because it would mean paying more in taxes, Coletta Zapata said.

Weber, who joined from a car in the Grove, said potholes there range from the size of “a large turtle” to “a Sherman tank.” Weber also said converting some private ways at city expense could be “almost like getting something for nothing,” where houses were built without following the rules.

City Councilor John FitzGerald (District 3) said taking over every private way would be an “extremely expensive undertaking.” Nee said bringing them up to code would cost hundreds of millions of dollars, and that his department has many open positions.

What residents said

Six residents testified, most in support. Nancy Leo, who said Stella Road, a private way in Roslindale, has been home since 1988, said private ways carry public traffic, including emergency vehicles. “These residents are being asked to pay twice,” Leo said.

Doug Woodhouse, in a prerecorded video from a private way in Roslindale, said the post office skipped deliveries on several days, saying the street was too dangerous for carriers. “I don't think our street can maintain ... this road on our own,” Woodhouse said.

Chris Arena, a homeowner in the Grove, said that after a neighbor died, emergency responders described how hard it had been to reach the house by a road called Linden. “So this ambulance couldn't get down. Had to drive the other way,” Arena said.

A co-leader of the Mount Hope Canterbury Neighborhood Association, which the co-leader said has 10 private roads, asked whether the city could repave with small asphalt curbs for drainage without running afoul of state law.

What happens next?

Coletta Zapata asked Public Works for a ballpark cost and staffing estimate, and for the initial and yearly cost of filling private-way potholes citywide. Worrell asked what it would cost to fill every private-way pothole from closed 311 cases.

“I'm just concerned about accuracy, but let me see what we can come up with,” Nee said.

Worrell said he looks forward to a working session; no date was set. Written comments sent to the committee by email become part of the record, the chair said.

Leo asked councilors not to let the ordinance end the discussion. “It's a problem that's just been kicked down the road for 100 years,” Leo said.