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Maine Alliance for Road Associations

PUBLIC EASEMENTS/ MANTER TESTIMONY

  • 09 Apr 2013 4:28 PM
    Message # 1264408
    Anonymous member (Administrator)

    Following is testimony by Roberta J. Manter that will be delivered at tomorrow's hearing on the bill, tomorrow on Wednesday, April 10 at 1:00 p.m. in room 214 of the Cross Building, before the State and Local Government Committee. If you want to testify, attend. If you want your views heard but cannot testify, either write directly to your legislators and the committee (see below) or post your thoughts HERE and I will transmit them at the hearing.

    Last year, in response to a plea from my husband and myself and several others, the legislature formed a Stakeholder Group to study the problems of abandoned and discontinued roads. I was privileged to serve as a member of that group, bringing to the table thirty years of my own experience (and forty of my husband fs) with this problematic class of roads. Other members represented a variety of interests, and the group worked hard to define the problems and to suggest solutions which would be fair to parties on all sides of the issue. After several group meetings, the Stakeholder Group produced a report for the legislature, which included the following recommendations:

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    "This Stakeholders Group has developed the following recommendations when a governing body chooses to retain a public easement when a road is discontinued:

    1. Municipalities should be given 2 years to complete the process of developing a list of all municipal roads that they intend to keep in repair with public funds. After 2 years, the roads not included in the list will become automatically discontinued with no public easement. Abutters have 2 years from the date of the publication of the list to file a claim with the governing body.

    2. Title 23 MRSA Section 3028 regarding abandonment of public ways should be repealed. Title 23 MRSA Section 3026 regarding discontinuance of town ways/roads, should no longer automatically retain a public easement; rather, an easement can only be retained by an affirmative vote to do so by the governing body.

    3. If a governing body (municipality) determines it would like to retain a public easement after discontinuance of a town way, the governing body must assume liability and responsibility for the easement to the extent of its intended uses. A public easement must come with fiscal and maintenance responsibilities, and abutting land owners must be notified of proposed action. Failure to maintain the easement for 2 years will automatically extinguish the public f fs interest.

    4. When a municipality chooses to end its maintenance responsibility for a road via a discontinuance process under Title 23 MRSA Section 3026, the municipality f fs rights will be extinguished.

    5. Courts have declared that access to property is a property right attached to the land; therefore, if a road is discontinued and a municipality no longer retains any interest in the property, an easement must be given to property owners requiring access to their property. Continued use of the previously existing access may not be precluded unless an equivalent access is available.

    6. Future municipal decisions to discontinue or abandon a municipal road must be by an affirmative vote by the governing body. There will be no assumption of abandonment or automatic conclusion that a public easement does not exist due to the lack of maintenance or lack of use of the road."

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    In response to the above recommendations of the Stakeholder Group, a bill, L.D. 1177, has now been presented to the legislature in "concept draft" form. As I understand it, that means that it is basically a skeleton bill which the State and Local Government Committee is free to flesh out as they see fit. Below are my suggestions for what my husband and I would like to see added. Our goal is not so much to solve our own problem (- we do not expect to recover what we have lost -) but rather to give a voice to the many, many people we have met that are in the same boat, and to put an end to the injustices that result when private individuals are forced to maintain, at private expense, roads which are open to public use and abuse.

    NOTE: Items to be deleted from the current law are in brackets and in [italics.]

    Items to be added to the current law are underlined.

    Items from proposed revisions (RJM or Stakeholders) are in this font

    AN ACT Repealing the Abandoned Roads Law

    Be it enacted by the People of Maine, as follows:

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    Sec. 3028. Abandoned Roads

    R.S., T 23, Sec. 3028, repealed. Section 3028 of Title 23 of the Revised Statutes, as enacted by chapter 711 of the public laws of 1975 and as amended is repealed.

    Effective _________, 2013

    SUMMARY: The Stakeholder Group recommended that: "2. Title 23 MRSA Section 3028 regarding abandonment of public ways should be repealed."

    AN ACT Relating to Discontinuance of Roads

    Be it enacted by the People of Maine, as follows:

    R.S., T 23, Sec 3026, amended. Section 3026 of Title 23 of the Revised Statutes, as enacted by chapter 711 of the public laws of 1975 and as amended, is amended to read as follows:

    ˜ ˜3026. Discontinuance of town ways

    1. General procedures. A municipality may terminate [in whole or in part any interests] the whole or any portion of an easement held by it for highway purposes. A municipality may discontinue a town way or [public] an easement held by it for highway purposes after the municipal officers have given best practicable notice to all abutting property owners and the municipal planning board or office and have filed an order of discontinuance with the municipal clerk that specifies the location of the way, the names of abutting property owners and the amount of damages, if any, determined by the municipal officers to be paid to each abutter.

    Upon approval of the discontinuance order by the legislative body, and unless otherwise stated in the order, [a public easement shall, in the case of town ways, be retained and] all remaining interests of the municipality shall pass to the abutting property owners to the center of the way. If the way being discontinued provides the sole access to one or more properties, a right of way shall be allowed to such property owner(s) over the land formerly occupied by the said way. Such right of way shall be for ingress and egress of the said property owner(s) and their invitees including utilities, and the property owner(s) shall have the right to keep the access in repair at their own expense, to post and/or gate the access to prevent public use, and, if more than one property is involved, to form a road association as provided in Title 23 sections 3101 through 3105. Any action taken under this section shall be recorded as required by Title 23 section 3024.

    [For purposes of this section, the words "public easement" shall include, without limitation, an easement for public utility facilities necessary to provide service.]

    [ 1981, c. 683, ˜ ˜1 (NEW) .]

    2. Definition of best practicable notice. "Best practicable notice" means, at minimum, the mailing by the United States Postal Service, postage prepaid, first class, of notice to abutting property owners whose addresses appear in the assessment records of the municipality.

    [ 1981, c. 683, ˜ ˜1 (NEW) .]

    SECTION HISTORY

    1975, c. 711, ˜ ˜8 (NEW). 1977, c. 301, ˜ ˜1 (AMD). 1981, c. 683, ˜ ˜1 (RPR).

    Effective _________, 2013

    SUMMARY: The Stakeholder Group recommended that:

    "4. When a municipality chooses to end its maintenance responsibility for a road via a discontinuance process under Title 23 MRSA Section 3026, the municipality fs rights will be extinguished.

    "5. Courts have declared that access to property is a property right attached to the land; therefore, if a road is discontinued and a municipality no longer retains any interest in the property, an easement must be given to property owners requiring access to their property. Continued use of the previously existing access may not be precluded unless an equivalent access is available."

    The revision proposed here further clarifies the rights and responsibilities of owners of land abutting a way which has been discontinued.

    There have been several legislative attempts in the past to relieve towns of the obligation to compensate property owners for loss of access when a road is discontinued. The "Limited User Highway Law," 23 MRSA Sec.2068, was declared unconstitutional because it failed to provide due process, and because the Court found public use of the road in the absence of public maintenance would inevitably destroy the access. 23 MRSA Sections 3026 and 3028 have proven to have the same dire consequences due to automatic retention of a public easement, which is open to public use but is not kept in repair with public funds.

    AN ACT Relating to Change in Status of Discontinued of Roads

    Be it enacted by the People of Maine,

    as follows:

    Sec. 30?? Designated easements

    If the governing body of the municipality within which a way lies desires to change the status of the way to a designated easement upon its discontinuance as a town way or other easement, the discontinuance order shall clearly define the designated use for the easement, and the municipality shall also retain liability and shall bear the expense of keeping the easement in repair for the use designated. Abutting property owners shall be notified of the proposed action as in Title 23 section 3026. If an easement is being retained for property owners as described in section Title 23 section 3026, no designated easement shall be permitted to limit or interfere with the use by said property owners.

    Failure to construct and open the designated easement within 2 years from the date of the discontinuance order (as recorded in the registry of deeds) will automatically extinguish a municipality fs interest.

    Any action taken under this section shall be recorded as required by Title 23 section 3024.

    Effective _________, 2013

    SUMMARY: The Stakeholder Group recommended:

    "2. ... Title 23 MRSA Section 3026 regarding discontinuance of town ways/roads, should no longer automatically retain a public easement; rather, an easement can only be retained by an affirmative vote to do so by the governing body.

    "3. If a governing body (municipality) determines it would like to retain a public easement after discontinuance of a town way, the governing body must assume liability and responsibility for the easement to the extent of its intended uses. A public easement must come with fiscal and maintenance responsibilities, and abutting land owners must be notified of proposed action. Failure to maintain the easement for 2 years will automatically extinguish the public fs interest."

    The revision proposed here further protects the owner of property abutting a way from having his access precluded by the way fs conversion to an easement incompatible with his needs.

    AN ACT Relating to Inventory of Roads

    Be it enacted by the People of Maine,

    as follows:

    Sec. 30?? Road Inventory and Map

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    1. Within two years of the effective date of this act, municipalities shall prepare a Road Inventory and Map of all town ways in that municipality which the municipality keeps in repair with public funds pursuant to the Maine Revised Statutes, Title 23, chapter 304. If a municipality claims any public easement(s) which it does not keep in repair at public expense, it must take action under section 3026 and 30?? to either discontinue the easement or to designate its use and commit funds to keep it in repair for that use.

    2. A municipality shall publish its Road Inventory and Map on its publicly accessible website. The municipality shall at a minimum send notice of the Road Inventory with the property tax bills to all property owners of record, including a copy of this statute, and instructing them to check at the Town office or on the town fs website to determine the status of roads in which they have an interest.

    The municipality shall record its Road Inventory and Map in the registry of deeds for the county in which the municipality lies. Whenever any change is made regarding which roads are or are not kept in repair at the expense of the public, such change shall be added to the Road Inventory and Map, and such change shall be noted on the record at the registry of deeds.

    3. Municipalities shall have 2 years from the effective date of this statute to complete the process of determining the status of every road and public easement within their jurisdiction. Should clarification not occur within 2 years, any roads not listed in the Road Inventory will become automatically discontinued with no public easement. No compensation shall be required for loss of public access unless it can be shown that a road which is not listed as being kept in repair at public expense has in fact been routinely kept in repair at public expense within the preceding twenty years, or unless it can be shown that the public fs right to use the road has been enforced within the preceding twenty years.

    4. Any party aggrieved by the determination of a road fs status shall have 2 years from the date on which notice of the Road Inventory was sent to taxpayers, to file a claim with the municipal clerk, disputing the listing or lack of listing of a road. Upon receipt of notice of such claim, a public hearing shall be scheduled.

    Any party which disputes the findings of the municipality may seek declaratory relief to finally resolve the status of the way. The court may by its order or decree establish, alter, or discontinue the way, in whole or in part, and render judgment for or against the town in favor of the persons interested in the lands and for the damages they have severally sustained. If the petition is wholly granted, or wholly rejected, the court shall assign costs accordingly, or if otherwise, may assign costs as appears just.

    5) After completion of the Road Inventory and Map, municipal decisions to discontinue a municipal road or easement included in the Road Inventory must be by an affirmative vote by the governing body pursuant to section 3026. A municipality shall be responsible for keeping in repair each road or easement listed on the Road Inventory unless or until such road or easement shall be formally discontinued. Failure to fulfill this obligation shall be subject to action under sections 3651 et seq.

    Effective _________, 2013

    SUMMARY: The Stakeholder Group recommended:

    "1. Municipalities should be given 2 years to complete the process of developing a list of all municipal roads that they intend to keep in repair with public funds. After 2 years, the roads not included in the list will become automatically discontinued with no public easement. Abutters have 2 years from the date of the publication of the list to file a claim with the governing body."

    "6. Future municipal decisions to discontinue or abandon a municipal road must be by an affirmative vote by the governing body. There will be no assumption of abandonment or automatic conclusion that a public easement does not exist due to the lack of maintenance or lack of use of the road."

    The cost to towns of preparing a road inventory is kept to a minimum by requiring only that they list roads they intend to keep in repair with public funds. This should not be difficult, nor does it require research to locate or document long-forgotten roads.

    In the revision proposed here, procedures are outlined to assure that due process (i.e. notice, hearing, and appeal) is provided for abutters whose property access may be affected. Procedures are put in place to make records readily available and secured against loss. Furthermore, towns are provided a measure of protection against claims of loss of access over roads which have not been kept in repair with public funds for twenty years. On the other hand, owners of abutting land are provided some measure of protection against Towns deserting their obligation to bear the cost of repairs necessitated as a result of enforced public use of a road, which amounts to a huge unfunded mandate for land owners.

    AN ACT Relating to Definitions of Roads

    Be it enacted by the People of Maine,

    as follows:

    Sec. 3021, Subsection 2

    R.S., T 23, Sec 3021, amended. The 2nd paragraph of Section 3021 of Title 23 of the Revised Statutes, as enacted by chapter 711 of the public laws of 1975 and as amended, is amended to read as follows:

    2. Public easement. "Public easement" means an easement held by a municipality for purposes of public access to land or water not otherwise connected to a public way, and includes all rights enjoyed by the public with respect to private ways created by statute prior to the effective date of this Act. Private ways created pursuant to sections 3001 and 3004 prior to the effective date of this Act are public easements. Pursuant to section 3026, public easements must be kept in repair at public expense for the use for which they are designated. After two years from the effective date of this act, any public easement which has not been addressed pursuant section 30??, (Road Inventory and Map,) and/or section 30??, (Designated Easements,) is automatically discontinued with no public rights retained.

    Effective _________, 2013

    SUMMARY: These changes bring section 3021 into compliance with the Stakeholder group fs recommendation #3, which states: If a governing body (municipality) determines it would like to retain a public easement after discontinuance of a town way, the governing body must assume liability and responsibility for the easement to the extent of its intended uses. A public easement must come with fiscal and maintenance responsibilities, and abutting land owners must be notified of proposed action. Failure to maintain the easement for 2 years will automatically extinguish the public f fs interest.

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    Suggested revision of Section 3024:

    AN ACT Relating to Recording of ProceedingsBe it enacted by the People of Maine, as follows:

    R.S., T 23, Sec 3024, amended. Section 3024 of Title 23 of the Revised Statutes, as enacted by chapter 711 of the public laws of 1975 and as amended, is amended to read as follows:

    ˜ ˜3024. Recording of proceedings

    [No]

    Whenever there is a taking of property or interests therein by a municipality, or the discontinuance of a town way, [except by abandonment, after September 12, 1959, shall be valid against owners of record or abutting landowners who have not received actual notice, unless there is recorded] the municipality shall notify all property owners of record, and shall also record in the registry of deeds for the county where the land lies either a deed, or a certificate attested by the municipal clerk, describing the property and stating the final action of the municipality with respect to it. Failure to record the action in the registry of deeds shall render the action void unless it can be proven that all property owners of record have received actual notice of the action.

    Effective _________, 2013

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    SUMMARY: In the revision proposed here, the reference to abandonment is deleted so as to conform with the Stakeholder Group fs recommendation #2, that, "Title 23 MRSA Section 3028 regarding abandonment of public ways should be repealed." The Stakeholder Group further recommended that, "abutting land owners must be notified of proposed action." (Recommendation #3.) In its existing form, the language of section 3024 was confusing in that it appeared to mean if someone does NOT receive actual notice and the town failed to record the action in the registry of deeds, that the discontinuance is effective against everyone else on the road, but if the one person they were unable to reach returns, the town has to maintain the road as a town road just for him. Also, it appeared to say that if a town neglected to send actual notice to ANYONE, it could claim that the discontinuance was still valid because it WAS recorded in the registry of deeds.

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    Last modified: 29 May 2013 2:00 PM | Anonymous member (Administrator)

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