For the last forty-five (45) years, obtaining a permit to build any type of structure on any former railroad right-of-way in the Commonwealth of Massachusetts has been far from seamless. Massachusetts General Law c.40 §54A, enacted by the legislature in 1973, required that any purchaser of any lands formerly used as a railroad right-of-way or any property appurtenant thereto formerly used by any railroad company in the Commonwealth, must, after a public hearing, obtain consent in writing from the secretary of the executive office of transportation to the issuance of any such permit.

The problem with the statute including “any property appurtenant to any right-of-way formerly used by a railroad company” is that it was too broad and extremely difficult to track down which properties were ever appurtenant to railroad property in a fifty (50) year title exam. It was creating large hassles for existing and potential new property owners to obtain consent from the Massachusetts Department of Transportation (the “DOT”) for the issuance of a desired building permit. Additionally, if the DOT declined to consent to the issuance of the desired permit, the property owner would be entitled to compensation, provided however, that the property owner originally purchased the property prior to January 1, 1976. Nearly forty-five (45) years later, and based on statistics that people only tend to hold title to property for an average of nine (9) years, this clause of the statute will likely benefit very few property owners at this point.

Fortunately, on August 10, 2018, the legislature approved an amendment (St. 2018, c. 228, §10) which makes this process a little less burdensome. So what changed?

1. The language in the original statute regarding any property “appurtenant” to railroad right-of-way property was removed, thus subjecting fewer properties to the requirements of the statute.
2. The term “former railroad right-of-way” is now defined as:
   1. any property formerly owned in fee by a railroad company and used as a railroad right-of-way; or
   2. any property formerly subject to an easement held by a railroad company and used as a railroad right-of-way.
3. Existing and new potential property owners subject to the statute still need to obtain consent from the DOT as to the issuance of a permit but the DOT now has discretion as to whether a public hearing is needed. The new act retains the language regarding compensation for the property owner if the DOT declines consent to the issuance of a permit.

While the new act does not eliminate all of the hassle for existing and potential property owners (and title examiners), it does reduce the amount of properties subject to the requirements of the statute and helps provide for a more flexible permitting process.