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Maine Alliance for Road Associations

LD1723

  • 28 Aug 2021 7:02 AM
    Message # 10963582

    What do you all think of this "emergency" legislation to have Windham plow Private Roads.

    1 file
  • 28 Aug 2021 7:44 AM
    Reply # 10963720 on 10963582

    Testimony from Rep. Bryant on LD1723. I wonder if there is a way to find out which towns plow Private Ways?

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  • 29 Aug 2021 11:50 AM
    Reply # 10966577 on 10963582

    On additional reading, I discovered that Windham maintains an "approved" list of private ways that it plows; and private ways on that list are in "approved" subdivisions with paved roads. So, if we all pave our roads and move them to an "approved" subdivision in Windham, we may, some day, have Windham plow, salt and sand our roads.

  • 29 Aug 2021 2:31 PM
    Reply # 10966895 on 10963582
    Anonymous member (Administrator)

    I answered this earlier but have had more thoughts on it, so I'm editing my earlier post.  I apologize for making this so lengthy, but it's a confusing issue that takes a good bit of explanation to make LD 1723 understandable.

    First, to address your concern that you would have to "pave our roads and move them to an 'approved' subdivision in Windham," that's one of the things this bill seeks to avoid.  The goal is to provide a path whereby roads that DO NOT qualify for acceptance as town ways can continue to get winter maintenance by the Town as they have before.

    As I understand it, the issue is that the town of Windham has an unusually high proportion of private roads within the town, (over half of its roads,) and that the Town has been providing snow removal on these roads for decades.  The problem with that is that in 1989, the Maine Supreme Court issued an "Opinion of the Justices" stating that it would be unconstitutional for a town to use town funds for the private purpose of maintaining a private road.  Since then, Maine Municipal Association (MMA) and the DOT have been advising towns that it is not legal for a town to plow private roads.

    I know other towns that simply stopped plowing all the private roads they had been plowing for years.  Most of them didn't have anywhere near as many private roads as Windham has, but some of those towns dropped people in the middle of winter, leaving them in a panic over who would keep them plowed out until spring.  The Town of Windham is trying to avoid leaving over half its roads unplowed.

    LD 1723, the "Private and Special Law" that was passed this last session, applies ONLY to the Town of Windham.  It basically buys Windham residents a year to get all their "private ways publicly plowed" to be legal.  It requires people on those roads to scramble to get road associations in place so they can use 23 MRS 3105-A to get snow removal.  Section 3105-A allows the residents of a town to vote to allow the Selectmen to use town equipment on "private ways" when it's in the best interest of the town for fire and police protection. 

    The catch is that the term "private ways" doesn't refer to private ROADS, but to a class of roads deemed "public easements" under 23 MRS 3021.  Here is where the terminology can be extremely confusing. 

    A "town way" is a road that has been legally laid out and accepted, built to town standard, and is kept in repair at public expense and is open to public use. 

    A "private road" generally is either entirely on private land, or is laid out as part of a subdivision.  It generally is NOT kept in repair at public expense, and is not open to general public use.

    A "public easement" is defined in 23 MRS section 3021 as providing public access to land or water not otherwise connected to a public way.  Section 3022 specifies that it's for access by foot or motor vehicle.  But these sections do not require any public maintenance of public easements.

    The old term "private way" (as opposed to "private road") historically referred to roads that were laid out by a town or county in response to a request from a private individual for a road to access his land.  In Maine's early days, it was accepted practice for the public to take private land to create these roads to provide access to developed land.  The person who requested the layout was responsible for the cost of taking the land and building the road.  But over time, it was slowly recognized that it was unconstitutional to take private land for private access to another's land.  In an attempt to resolve conflicting needs, the Courts and the Legislature moved towards recognizing some public benefit in these roads, and eventually declared that "private ways" could only be laid out where there was a legitimate public need for the road.  In other words, these became public roads even though they were built and maintained at private expense.

    In an attempt to avoid confusion as to the public nature of "private ways," section 3021 replaced the old term "private ways" with the term "public easements."  Today, either the old term "private way" or the new term "public easement" may be used to refer to a road that is open to public use but supported with private funds.  Private ROADS, on the other hand, are privately owned and maintained, and are not open to general public use.  So the confusion remains!

    To compound the confusion, we now have 23 MRS 3101-3106, which are known as the "Private Ways Statutes."  The term is a leftover from the old private ways, but sections 3101-3104 now apply to Private ROADS.  Of particular interest is section 3105-A, which allows towns to vote to allow municipal officers to use town equipment on "private ways" when it's in the best interest of the public for fire and police protection.  Under the 3021 definition of "private way," this therefore applies to "public easements," NOT to "private roads."  As I stated above, in 1989 the Maine Supreme Court issued an "Opinion of the Justices" stating that it would be unconstitutional for a town to use town funds for the private purpose of maintaining a private road.  Therefore section 3105-A cannot be used to allow a town to plow private roads.

    But there is a loophole!  If a private road is dedicated and accepted as a "public easement," recognizing that the public can use the road, it then becomes eligible for winter maintenance under 23 MRS 3105-A.

    Windham's private and special law requires that if those on private roads wish to have public snow removal continue, they must meet certain criteria for approval.  (They are NOT required to pave their roads or to "move them to an approved subdivision.")  One of those criteria is that they must form a road association to assure that summer maintenance is provided.  This is to keep town plow equipment from being damaged by bad roads.  Residents have a choice between forming a non-profit road association, or forming a statutory road association under 23 MRS 3101-3104.  Personally, I would recommend a statutory road association, as it is both simpler to administer and provides some valuable protections and enforcement powers.

    The language of section 3101 - 3104 can be confusing.  Given the statutory title "Private Ways Statutes," a person unfamiliar with the law might think that Statutory Road Associations are only available to "private ways," which, according to 23 MRS 3021, are "public easements," and that "private roads" which do not have public easements can only form a non-profit road association.  Actually 23 MRS 3101 can be used to form a statutory road association on EITHER a "private way" or a "private road. (See paragraph 2 of section 3101.)  However, section 3105-A only permits use of town equipment on "private ways," that is, "public easements." 

    So to recap, in order to enable the town to use its equipment on these roads in Windham, the legislature is asking that they form road associations and then grant the roads to the town as public easements. This would both assure the town that there is an association in place that will keep the road in a condition where the Town can plow it without damaging town equipment, and it will make it legal for the town to plow it under section 3105-A.  The tradeoff is that the public is then given free use of the road, although if the road is a dead end, this may not be much of an issue. Without public rights of passage, use of public equipment on a private road has been deemed unconstitutional by the Opinion of the Justices cited above.

    The Maine Alliance for Road Associations will be holding their Annual Road Association  Conference on October 2, and the topics to be addressed by our speakers include formation and operations of a road association, and easements to allow town plowing.  This would be an excellent opportunity for Windham residents to come and learn how to set up a road association so that their road can meet the requirements to qualify for continued town snow removal.  For more information, go to the Events tab on this page.


    Last modified: 30 Aug 2021 11:46 AM | Anonymous member (Administrator)
  • 29 Aug 2021 3:58 PM
    Reply # 10967082 on 10963582
    Anonymous member (Administrator)

    If someone who reads this thread is a member of the Windham facebook group, could you post something there to call people's attention to this thread?  I'm not from Windham so I can't post it myself, but I'd like to let people know about the MARA conference as I think it would really help those who need to set up a road association in order to qualify to have their road plowed.

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