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Maine Alliance for Road Associations

Legislative update - Commission on Abandoned & Discontinued Roads

  • 13 Feb 2022 3:42 PM
    Message # 12596886
    Anonymous member (Administrator)

    LEGISLATIVE UPDATE: The State and Local Government Committee has voted UNANIMOUSLY "OUGHT TO PASS" on a bill that will form a permanent Commission to work on the problems of abandoned and discontinued roads. While this may not be of interest to MARA members on strictly private roads, we do have some members who deal with the additional challenges of trying to keep a discontinued road passable.

    The Committee did NOT agree to adding private roads to the duties of the Commission, saying that it would dilute the focus too much. But there is enough overlap in the concerns of the two groups that I do think those on private roads will get some benefit.

    Both private roads and discontinued roads find abutters struggling to keep the road passable. Both can have problems with erosion, leading to runoff into lakes and streams and adding “non-point source pollution.” Both can have problems with emergency access and limited police protection. Neither type of road is generally maintained at public expense, leading to questions of tax fairness. If solutions can be found for these problems on discontinued roads, those solutions may benefit private roads as well.

    The Commission is also supposed to work on untangling the confusing terminology (private way, private road, public easement.) Currently, the term “private way” is often mistaken to mean a road that is privately owned and maintained, and over which the owner can restrict access. Such a road should more properly be referred to as a “private road,” not a “private way.”

    Unfortunately, Maine law has conflicting definitions of the term “private way.” While in some places the term is taken to mean a privately owned road, in other places Maine law defines “private way” as being the same thing as a “public easement” - that is, a road that is not kept in repair at public expense, but which is nevertheless open to public use by foot or motor vehicle. Most town roads discontinued after 1965 and most county roads discontinued after 1976 were automatically retained as public easements. Public easements cannot be obstructed to prevent the public from using them. To add to the confusion, some privately owned roads are also public easements. 23 MRS 3105-A provides a means by which towns can provide snow removal on a private road IF it is designated as a public easement.

    Also, there is the question of where ATV's are allowed to go. Does establishing a public easement on a private road for the purposes of allowing snow removal under 23 MRS 3105-A automatically open the road to use by ATV’s? There are some who assert that all public easements are open to ATV use, which has residents on abandoned and discontinued roads up in arms. This question is sure to be addressed by the Commission in the context of discontinued roads, and if it can be determined that public easements are NOT to be used as ATV trails, those on private roads with public easements will also reap the benefits.

    If you want to view the amended bill, as well as written testimony that was submitted on the bill, here's a link:

    https://legislature.maine.gov/ctl/SLG/04-30-2021?panel=3&time=0&sortdir=0&sortby=2

    Scroll down and click on LD 1513. (Don’t be misled by title of the bill - it has been totally rewritten from what was first presented.) Then you can click on the blue icon next to each item to read it. The Amendment is not the final version, but it comes close.  It still has to go through language review after incorporating tweaks that the State and Local Committee made in its last work session.  NOTE THE DATES AT THE RIGHT - the ones that are dated last year are comments on the original bill, which was quite different. The ones that are dated Jan. or Feb. of 2022 are on the bill as amended to form the Commission.

    If you want to view the Legislative Work Session, here's a link: https://www.youtube.com/watch?v=fBfEwN0Ebeo&t=4815s

    The relevant part of the hearing comes on at 1:16:00 of the video.


  • 14 Feb 2022 6:36 AM
    Reply # 12598200 on 12596886
    Anonymous member (Administrator)

    Please note, in the first link provided above, that MARA provided written testimony in favor of LD 1513. We consider this bill important for the reasons Roberta enumerates.

    The Board, on behalf of our membership, supported including "private roads" in the scope of the Commission. This inclusion was denied but we are hopeful that benefits for owners on private roads will be realized when the confusion in terminology is addressed by Commission.

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