We are preparing for the first meeting of our road association.  We have gotten quotes for repair to our road using either:

a)recycled asphalt (i.e., paving) or 

b)adding gravel and surface material then grading.

The quotes for each procedure are effectively equal and over time, it should actually be less expensive for the benefactors if we pave the road.  I understand that the statute excludes paving from the road repairs that can be performed under the purview of the association unless it addresses an erosion issue.  It is a matter of opinion whether or not the paving addresses an erosion issue.  From a simple perspective (i.e., without hiring an expert) , this could probably be argued either way.

My questions are:

Is anything specific needed to demonstrate that paving is actually addressing an erosion problem or do the benefactors simply need to agree that it is?

Can the association put the question of which approach to choose to a vote at our meeting even if erosion is NOT the problem?  That is, can paving and maintaining the paved road be added to the bylaws if the benefactors agree?

Thanks for your help!   

I had heard that if a road surface is "impervious" it would be considered paved and if "pervious" the surface would be  considered unpaved and acceptable according to the state statute for the maintenance of private ways, 23 MRS §3101, 1B. Two days ago, I wrote a post to the Forum to this effect but decided to ask Attorney John Cunningham's opinion before posting. I'm glad I did.

Recently, in email correspondence, Attorney Cunningham pointed out,

"The question of whether the surface is impervious is not relevant to this statute. The only relevant question for this purpose is whether the proposed surfacing does or does not constitute paving." 

Our road association has placed "Reclaim" over a properly prepared base on the recommendation of a local construction company. Reclaim is a pervious aggregate of ground asphalt and gravel thought to hold up to use and weather better than plain gravel. We believe our road surface complies with the statute referenced above.

Attorney Cunningham continued on this subject, 

"Some reclaim material would not be regarded as paving, but some could be (some reclaim has a high percentage of asphalt and forms a more solid surface with use, counting as paving to some). Also, some towns or other jurisdictions could have a definition of paving that includes any asphalt surface, thus including reclaim as paving. The reason I worded my response the way I did is so that readers of your website will know that there is no “one size fits all” answer. A surfacing project using reclaim could be held to be paving in one association’s jurisdiction and not paving in another. We should encourage people to realize that what constitutes paving must be checked out for each situation as it arises, and surfacing with reclaim material may not count as paving on one occasion, but may count as paving on another occasion even for the same association (because the quantity of asphalt in the mix changed or because the local rules changed). It is also possible for an association to be advised by its contractor that the reclaim surfacing does not constitute paving, only to have a court decide that it is paving, when challenged by a disgruntled owner, and rule that all assessments for the cost of the resurfacing project are invalid and uncollectible. In short, there is danger in offering advice that may get an association in trouble, and the better option is to recommend that associations work out for themselves what would constitute paving in their own jurisdiction, with advice from their contractor, the local code officer, and maybe their lawyer."

I have contacted the local code officer for a definition of "paving" in our area.