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Massachusetts State Highway Right-of-Way (3-MA-c)

In Massachusetts, a developer must obtain a Permit to Access State Highway (“Access Permit”) from the Massachusetts Department of Transportation (“MassDOT”) to construct transmission lines that encroach on a state highway right-of-way. Pursuant to Massachusetts – Mass. Gen. Laws ch.81, §7D, MassDOT has the authority to grant easements within a state highway for the purpose of constructing “wire, pipes, poles, and conduits.”



State Highway Right-of-Way Process

3-MA-c.1 to 3-MA-c.2 – Consult with the Massachusetts Department of Transportation (MassDOT)

At the outset of a project, a project developer should consult with the appropriate MassDOT District Highway Director (DHD) to determine if an Access Permit is required. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways.

3-MA-c.3 to 3-MA-c.7 – Submit Request for Determination (Optional)

If a developer requests a determination regarding whether an Access Permit is required, the developer must provide all necessary and appropriate information requested by the DHD to conduct a proper evaluation. Upon receipt of all necessary information, the DHD issues a determination in writing within ten (10) business days. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways.

The MassDOT issues Vehicular and Non-Vehicular Access Permits. If both types of permits are required then the applicant (developer) must file a distinct Application for Permit to Access State Highway (“Access Permit Application”) for both. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways. Generally, a bulk transmission developer needs to obtain a Non-Vehicular Access Permit before “construction, major repairs or capital improvements of utilities” within a state highway. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways.

3-MA-c.8 –Application for Permit to Access State Highway

To obtain an Access Permit, a developer must file an Access Permit Application (Application) with the appropriate DHD with jurisdiction over the access site. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways. Generally, a complete Non-vehicular Access Permit Application for the purposes of constructing transmission lines must include:

  • Highway route number;
  • Location of the facility;
  • MassDOT Project File number (if applicable);
  • Type of construction (aerial, surface, or underground);
  • Voltage;
  • Number and size of conductors;
  • Casing (type and thickness);
  • Method of installation for underground facilities;
  • Vertical and horizontal clearances;
  • Tree clearances;
  • Sight line analysis;
  • Landscape restoration plan;
  • Pavement restoration details;
  • Traffic management plans; and
  • Site plans.

Utility Accommodation Policy on State Highway Right of Way, p. 21-22.

3-MA-c.9 to 3-MA-c.11 – Review Application Materials for Completeness

After receipt of an Application, the DHD performs a “Completeness Review” of the Application to determine if any materials are missing. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways. The DHD must notify an applicant (developer) of any deficiencies in the Application within ten (10) business days of receipt. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways.

The DHD continues to review the Application until the DHD determines that the Application is complete and contains sufficient information for a complete evaluation. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways. After the DHD determines that the Application is complete, then the applicant (developer) pays the required application fees.

3-MA-c.12 to 3-MA-c.13 – Review Application for Approval

In assessing an Application for approval, the DHD requires that engineering plans and specifications provide for safe and efficient access. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways. The DHD may also place conditions on an Access Permit to mitigate traffic impacts and minimize environmental impacts throughout construction and the duration of the permit. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways. In addition to obtaining a valid Access Permit, MassDOT may only permit utility facilities to occupy state highway right-of-way so long as such use and occupancy:

  • Does not adversely affect the primary function of the highways or materially impair their safety, operation, and visual quality;
  • Does not conflict with state or federal rules and regulations;
  • Do not increase the difficulty or future costs of construction or maintenance; and
  • Does not impact a newly-paved surface (Five (5) year moratorium on any open cuts), or the construction method used is non-destructive. Utility Accommodation Policy on State Highway Right of Way, p. 5.

3-MA-c.14 – Permit to Access State Highway

The DHD may require a performance bond to be posted for the estimated cost of construction occurring within the highway Right of Way. If the DHD requires a performance bond, the DHD will not issue a Permit until the bond is posted.

Unless otherwise stated in the Permit, construction of the proposed project must be completed within one year of the date the Permit is issued. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways. If the developer seeks to extend the Permit, the developer may submit a written request to the DHD prior to the expiration of the original Permit. Upon receipt of a written request, the DHD may extend the Permit by an additional year. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways.

Note: Any Access Permit that requires recording will not be effective until the developer files the Access Permit at the appropriate registry of deeds.

Generally, Applications for Non-vehicular Access Permits are not subject to an administrative appeals process. If MassDOT does not approve the Permit Application, then the developer may reapply for a Permit. Massachusetts – tit. 720 Mass. Code Regs. §§ 13.00 et seq., Approval of Access to State Highways.


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