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Maine Alliance for Road Associations

Private Road/Public Access

  • 24 Jan 2021 7:21 PM
    Message # 10018212

    We are a 15 member statutory road association formed in 2017. I asked the head of the town Public Works department if we could use signs to limit traffic on our road and he told me that the town stopped maintaining the road some time ago, but the road is still public access. Our portion of the road is more than a mile long and it require extensive repairs each year and plowing in winter. Some years logging trucks use our road resulting in ruts, washouts, and even more expensive repairs.

    My association would like to know if there is legislation coming that will relieve us of the burden of public access or compel towns to maintain roads that are public access?

    Also, should we be required to pay the same property taxes that our neighbors who live on town maintained road pay if we pay for plowing and maintenance and they are not required to? Can people in road associations apply for tax abatement?

  • 25 Jan 2021 5:52 PM
    Reply # 10032469 on 10018212
    Anonymous member (Administrator)

    Ah, you have hit on TWO issues which for many years have been high on the list of priorities for Maine ROADWays (Residents & Owners on Abandoned & Discontinued Ways.)  Having unrestricted public use of a road that is no longer kept in repair by the public is a recipe for trouble.  In fact, a law that was passed in the late 1960's called the "Limited User Highway" law was repealed just a few years after it was passed, because the Court said a public road with no public maintenance "will inevitably be destroyed."  (See Jordan v. Canton.  https://law.justia.com/cases/maine/supreme-court/1970/265-a-2d-96-0.html     Especially pages 99-100.) 

    On private roads, each person who uses the road can be compelled to contribute to the cost of keeping the road in repair, through a road association.  But on discontinued roads that have been retained as public easements, the general public gets a free ride.  Land owners are not permitted to restrict public use of the road, and members of the public who do use it may not care what condition they leave the road in, because they contribute nothing towards the cost of maintenance.  We have tried repeatedly to get legislation to address these issues, but it's been an uphill battle.  Still, we are making small progress.

    Several years ago, the Maine Woodland Owners (then known as SWOAM) presented two bills that we supported.  The first is  Title 17 section 3853-D - Operating a motor vehicle on land of another.  Here's a link:  http://legislature.maine.gov/legis/statutes/17/title17sec3853-D.html   This law makes it a Class E Crime to damage a public easement with a motor vehicle.  Although there is an exemption for forestry operations, my interpretation from the language of the law is that it should only apply where the road is on the property owned by the logger.  He should not be immune from the consequences if he destroys your access road in getting to and from his property. 

    Second, there is Title 23 section 3029-A - Damage to Public Easement; Cause of Action.  Here's a link:  http://legislature.maine.gov/legis/statutes/23/title23sec3029-A.html  This statute allows you to sue for damages to the easement, and allows you to be awarded attorney fees and costs.  

    Maine ROADWays tried to present a bill to address a number of related issues a couple of years ago, but it was too complicated so the State and Local Government Committee didn't want to tackle it.  So this year we're trying again with a simpler bill.  I don't know yet what the exact wording will be or what the L.D. number will be, but I'll try to get the word out when it comes back from the Office of the Revisor of Statutes. 

    The intent of the bill is that if a town holds a right of way that provides the sole access to one or more residences, the town has to keep the road in a condition suitable for residential use.  IT WOULD NOT APPLY TO PRIVATE ROADS, just those that remain public easements, where the public is allowed to wear out a road to which they contribute nothing. 

    If the Town doesn't want that expense, they have the option of proposing discontinuing the public easement, leaving it a private road where the abutting landowners have a right to exclude outside traffic.  This would have to be done through 23 MRSA 3026-A.  Here's a link:  http://legislature.maine.gov/legis/statutes/23/title23sec3026-A.html

    This is another of our small victories.  The legislature has struggled for years over what to do with discontinued roads.   Before 1965, roads that were discontinued ceased to exist as roads, reverting to the property on each side.  This often left properties land locked.  So in 1965, the law was changed to automatically retain a public easement when a road is discontinued.  That has proven to also be problematic, as public use in the absence of public maintenance destroys the road.

    So why not let it become a private road?  The objection to that option has been that when most of these old roads were established, the land was not actually purchased.  Instead, there was simply an easement over the land, while the land underneath still belonged to the landowner.  When the road was extinguished, the land had to be returned to the landowner.  Giving the land to his neighbor for access would be a taking of private property for private use, which is unconstitutional.

    The solution Maine ROADWays suggested, and which is now law, is that the landowners are given a choice.  They can voluntarily grant each other mutual access, and in so doing, get rid of the public traffic and have some control over how the road is used and maintained by their neighbors.  Or, if they can't agree to do that, the public easement must remain, and they will have no control over who uses the road or how.  And the public will not contribute to the cost of maintenance, even though they can use it at will.  Take your pick!  

    Part of the problem currently is that towns are required to keep all of their roads "safe and convenient for the public with motor vehicles," and the State has set out recommended standards for town roads that include certain depths of underlayment, surface gravel, and pavement, as well as requirements for the construction of ditches and culverts.  With the rising weight of trucks and the increased volume of traffic, road maintenance has become so expensive that towns will do whatever they can to cut down on the number of miles they must keep in repair.  But they are only allowed an "all or nothing" approach - keep it to full standard, or stop doing anything.  We think that if they were allowed to keep low volume residential roads to a lower standard, they would be able to serve more of their residents.

    Some midwestern states allow "Minimum Maintenance Roads" that serve as farm roads, fire roads, and the like.  But interestingly enough, those states are not allowed to reduce a road to the status of minimum maintenance if anyone lives on it.  Yet here in Maine, towns can get away with ceasing ALL maintenance because a road only serves a few homes.  We think people on these roads would be thrilled to have the town just keep their road passable in return for allowing the public to continue to use the road.  That is the intent of the bill we've proposed this session.

    As to your question about a tax abatement, I think that's a great idea.  I addressed in detail in an earlier post here on the forum, so I won't repeat it all here.  You can find it by using our search function, searching for "tax abatement."  I do want to propose a bill to address that issue at some point, but it's hard to get anyone to sponsor more than one bill at a time - and trying to put it together in one bill is likely to get it rejected.  Besides, the bill Maine ROADWays already put in needs to go before the State and Local Government Committee, and a tax abatement bill would have to go before the Taxation Committee.  Maybe NEXT session!

    Last modified: 25 Jan 2021 6:02 PM | Anonymous member (Administrator)

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