Maine Alliance for Road Associations


 

Repairing existing paving?

  • 05 Jun 2019 9:50 PM
    Message # 7558746

    Under 23 MRSA 3101, paragraph 1 B, "'Repairs and maintenance' does not include paving, except in locations where limited paving is demonstrated to be a cost-effective approach for fixing an erosion problem or to repair and maintain pavement existing as of July 1, 2007." 

    Has anyone needed to address repair of pavement that was installed AFTER that date?  What options do we have under the law?  I've heard that in at least one case, a road association got unanimous consent from land owners to pave a section of road, with some residents voluntarily contributing extra to the effort.  But in a large road association, (around 50 members, many of whom do not use the section of road that needs repair,) getting unanimous consent seems highly unlikely.  Any suggestions?

  • 28 Jun 2019 2:24 PM
    Reply # 7699143 on 7558746
    Anonymous member (Administrator)

    We recently required attorney fees to help defend our private road from potential damaging use by an outside party. Our attorney said we could not require members to contribute legal fees for this purpose. We held a meeting and voted an assessment from all members. Everyone but one owner paid (it was a worthy cause) We cannot and do not plan to pursue Notice of Claim for this “delinquency.” A similar approach could be used for the bad paving. 

    Call a Special Meeting and decide on an owner assessment for funds necessary for the repair. Since repairing the bad paving performed after 2007 falls outside what can be enforced by statute, make it clear to the owners that although payment of the assessment cannot be enforced, this project, which a majority agree is necessary, should be shared by owners according to the by-laws and rely on owners' good will as neighbors who want to do their share to maintain the road. Although there is no need to follow MRS 3101 in calling the meeting, I probably would just from habit and I think it sets a good tone for any association meeting. Unless I’m missing something, I bet you will be surprised at owners' willingness to comply with the outcome of their decision at the Special Meeting.

  • 29 Jun 2019 1:58 PM
    Reply # 7704985 on 7558746

    Good suggestion - but unfortunately, I don't think it would work well in this situation.  Most of our year-round residents live on the first, older, section of pavement, which is holding up well.  They have no particular interest in what happens to the road beyond them.  Out of 55 members, I believe only 9 live on the extended, badly paved section.  Then there are a few more residents who live beyond the pavement, plus a number of unimproved lots.  I'm not sure any of those beyond the pavement would care if it all went back to being gravel.  Bottom line, I don't think there are enough people who really want or need the pavement repaired to get sufficient voluntary support. 

    The developer who had a cheap paving job done (without even consulting anyone else on the road) so he could get a higher price for his lots, really left us in a quandary.  On the one hand, we are responsible for maintenance of the road.  On the other hand, is it fair to make everyone pay for something not everyone benefits from, especially in light of the restriction in the law?  The developer has sold all of his lots and is no longer in the picture.

    I also wonder why that particular date was chosen for the law.  Was it to say that from that time forward, road associations were not to pave their roads?  Or was it to say that pavement should not be repaired at road association expense until it was at least a certain age, in which case the date should not have been fixed to one specific year?

  • 29 Jun 2019 8:55 PM
    Reply # 7705489 on 7558746
    Anonymous member (Administrator)

    This is a challenging situation. As I understand it, through no fault of their own, the 9 owners who front the badly paved section now find themselves sharing maintenance costs for the entire road with the other 46 owners without benefit of the Private Ways Statute to enforce sharing maintenance cost for their tarred section with these same owners. If I were one of the 9, I would be furious with the departed developer and hold him or her responsible. If I were one of the 46, I would understand these feelings and want to help find a solution. It would be good to have all owners in your Association under equal protection from the Private Ways Statute.

    I suggest calling a Special Meeting using 23 MRS 3101 to discuss relevant estimates and decide on a plan. Various scenarios and costs could be placed on the agenda included in the call to meeting for absentee voting. If the 9 owners were willing to return to an unpaved road (and Private Ways protection), a possible compromise might involve volunteer contributions from the 46 owners to help reduce the expense of existing tar removal for the 9 owners involved. It might also be possible to convert the badly tarred section to "Reclaim" (a mixture of tar and gravel) in place. Our owners recently voted to have a Reclaim surface for its increased stability. We like it. Cost estimates would help in decision making. I would check with an attorney to see if any of the costs of restoration to a pervious surface in front of the 9 owners would be covered under the Private Ways Statute as a shared expense. This outcome certainly serves the spirit of the Statute. I would be interested in comments from others.

    I do not have answers for the questions in your last paragraph.

    Last modified: 02 Jul 2019 12:01 PM | Anonymous member (Administrator)
  • 30 Jun 2019 11:47 AM
    Reply # 7707879 on 7558746

    Thanks for your input, Sandy.  I do like your idea of looking into "reclaim" as a possible cheaper alternative.  But we're still stuck with the date restriction in section 3101, so I'm still wondering what we are allowed to do under the law.

    Not having spoken to many of the other members yet, I really can't guess how they will feel about the whole situation.  On the one hand, we could just say, "buyer beware" - those who bought on the outer paved section because they wanted to be on a paved road might have looked closer at what they were getting.  But one doesn't expect to have to examine what is under the pavement to see if it was installed properly!

    It doesn't seem wrong to ask those on the outer paved section to contribute to maintaining the original paved section, because they all have to use that in order to access their properties.  And everyone on both paved sections as well as most of the gravel section receive snow removal.  But it doesn't seem fair to have to charge everyone more because a section of paving few of them need was put in badly.  I agree that the developer should be held responsible, but this was a person who never paid his dues until forced to by a sale of one or another of his lots.  I think it would be a battle to get him to do anything, and I'm not sure there is any law that would apply.

    Our annual meeting comes up in August, and this will definitely be a point of discussion.  I just wish I had a clearer idea of what the law will allow us to do.



  • 01 Jul 2019 3:36 PM
    Reply # 7723881 on 7558746
    Anonymous member (Administrator)

    By "under the law", the phrase ending your first paragraph, I assume you mean under the Private Ways Statute, 23 MRS 3101 to 3106. As I understand it, repair and maintenance of the defective paved section of your road, placed after July 1, 2007, would be excluded from Association actions that would be permitted and subject to the provisions and penalties for non-payment set forth in the Private Ways Statute. For instance, enforcement by advanced collection procedures such as "Notice of Claim" would not be possible. Use of voluntary funds for the above purpose may be possible. This is not addressed in the Statute. Since the original paving was unauthorized, however, I recommend Association approval of any proposal for repair or continuance of the defective paved section.

    Paving of the Association road without permission may be considered an unapproved renegade action. Noting this and the inability of the Association to lawfully maintain said pavement, I believe the law would allow the Association (the owners) to approve funds for repair of this section by removing or reconfiguring the defective pavement to create a pervious surface capable of being maintained according to Statute.

    A combination of voluntary contributions and owner assessment by the Association may facilitate member compliance. For costly maintenance projects, our road association encourages and accepts voluntary contributions from empathetic owners or from those who feel they have benefited disproportionately. These contributions reduce the assessment share and make it easier for owners to afford.

    If the above project is cost prohibitive but could be put on hold for a year or more, owners could approve the funds and assess increments each year until the monies are accumulated.

    Enforcement by advanced collection procedures would be possible for the assessment(s).

    I recommend you check with your attorney on the above.  

    Last modified: 10 Jul 2019 8:24 PM | Anonymous member (Administrator)
  • 03 Jul 2019 9:00 AM
    Reply # 7737589 on 7704985
    Anonymous member (Administrator)
    Anonymous wrote: 

    I also wonder why that particular date was chosen for the law.  Was it to say that from that time forward, road associations were not to pave their roads?  Or was it to say that pavement should not be repaired at road association expense until it was at least a certain age, in which case the date should not have been fixed to one specific year?

    I have been thinking about your questions. I believe the answer contained in your first question is essentially correct. This provision in the Private Ways Statute may be seen as an attempt to limit the paving of private roads after July 1, 2007, for environmental reasons.  Paving, of course, produces an impervious surface that forces storm water to travel downhill picking up surface toxins as it flows until it finds absorbent soil, a low lying area, or body of water. Pervious surfaces permit absorption or percolation of storm water allowing the immediate natural control of flow and removal of pollutants.

    Since many of Maine's private roads traverse pollution sensitive watersheds to provide access to summer cottages on large bodies of water, limiting future pavement makes good sense. These environmental considerations may even help motivate your owners to return the damaged pavement to a pervious surface. The advantages (and disadvantages) of using pervious surfaces may be seen in the attachment. 

     

    Last modified: 11 Jul 2019 10:01 AM | Anonymous member (Administrator)
  • 03 Jul 2019 11:14 PM
    Reply # 7747573 on 7558746

    Thanks - that's a great link!

  • 04 Jul 2019 8:56 PM
    Reply # 7760782 on 7705489
    Anonymous member (Administrator)
    It might also be possible to convert the badly tarred section to "Reclaim" (a mixture of tar and gravel) in place. Our owners recently voted to have a Reclaim surface for its increased stability. We like it. Cost estimates would help in decision making

    I recently asked a well-known heavy equipment contractor in the Bristol area about making “Reclaim” from existing asphalt pavement on site. He advised against this saying it was difficult to control the quality of the finished product particularly at the edges. Better to remove defective pavement and prepare the road base for the surface of choice. 

    Last modified: 17 Jul 2019 6:59 PM | Anonymous member (Administrator)

                            The Maine Alliance for Road Associations


Powered by Wild Apricot Membership Software