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Maine Alliance for Road Associations

Road Repair - Paving vs. grading

  • 16 Dec 2022 8:22 AM
    Message # 13027672

    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!   


  • 19 Dec 2022 11:20 PM
    Reply # 13030592 on 13027672
    Anonymous member (Administrator)

    Bear in mind that a well-built gravel road is much cheaper to maintain than a paved road.  That's why that clause was put into the law - to keep well-to-do members of a road association from voting to pave it and charging more than other members can afford. 

    The road association I'm involved with has some gravel road and some that was paved by a developer before he turned it over to the road association.  The association has been able to significantly improve the gravel section but we've been saving for years towards some much needed repairs to the paved section, and still do not have enough funds to do what it needs. 

    The law does clearly prohibit paving, and it makes no exceptions other than for controlling erosion.  I have heard of some associations contemplating getting around this either by unanimous vote, (which I think is legally risky in case someone changes their mind,) or by having a separate paving fund independent from road association funds which people can donate to voluntarily.

    On the other hand, I've been told that reclaim doesn't actually count as paving, and that maintaining it is not so different from maintaining gravel.  Material can be added as needed, and if properly rolled, it should hold up well.  The biggest issue seems to be making sure your plow contractor knows enough to lift his blade slightly so as not to plow the surface off of the road.

  • 21 Dec 2022 1:52 PM
    Reply # 13032384 on 13027672
    Anonymous member (Administrator)

    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.

    Last modified: 23 Dec 2022 6:49 AM | Anonymous member (Administrator)
  • 22 Dec 2022 8:35 AM
    Reply # 13033174 on 13027672
    Anonymous member (Administrator)

    Thanks for getting input from Attorney Cunningham on this question.  His answer is all the more reason for approaching the Legislature to amend section 3101.  I think reclaim should be allowed as a more durable option than gravel but also a more affordable option than paving.  For example, I know of one situation where pavement was installed by a developer after July 1, 2007 before the association was formed.  The road association is not allowed by the law to repair it, but that pavement is deteriorating.  The statute needs to provide some method of addressing that pavement.  Reclaim could be a viable option if the statute specifically allowed it. I know of another association that wanted to pave their road and had unanimous consent of the members to do so, but then found out it was going to be too costly.  They also found reclaim to be an attractive alternative.

                            The Maine Alliance for Road Associations


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