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Maine Alliance for Road Associations

fair and equitable

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  • 10 May 2023 1:42 PM
    Message # 13198401

    According to the law "The determination of each owner's share of the total cost must be fair and equitable and based upon a formula provided for in the road association's bylaws or adopted by the owners at a meeting called and conducted pursuant to this section."

    It is always said that "fair and equitable" gives great latitude to how the assessments are calculated.

    Does anyone know of any cases where it was not considered fair and equitable?

    Also it is not for the use of the road it is for the benefit of the road.

    We have some people who refuse to pay for winter plowing. they still benefit from emergency access and because CMP can come out and fix power outages.

    Some of us wonder is it fair and equitable to have some pay for plowing and others pay full bill. The non payers don't come up in the winter and it was voted on.

    I am wondering if it is legal.

    Last modified: 10 May 2023 1:45 PM | Anonymous member
  • 11 May 2023 8:54 AM
    Reply # 13199474 on 13198401
    Anonymous member (Administrator)

    I am not an attorney and cannot provide conclusive legal evidence for what follows. I am unaware of any court cases where an owner's share of the maintenance fees was "not considered fair and equitable". I have also heard that courts may give considerable latitude to maintenance share formulas voted by majority of owners at a meeting called according to 23 Title ยง3101.

    Do you have a statutory road association? Were all the owners duly notified of the meeting and agenda where it was voted that some pay for plowing and others, who don't come up in the winter, do not pay? Were summer residents allowed absentee voting privileges if the vote was taken during the winter months?   

    As you have noted above, summer residents benefit from year-round access to their properties.  In our association, summer residents voted to join year-round residents in paying for plowing for the reasons of access for utility and emergency vehicles. Also, snow plowing expenses in Maine ain't what they used to be!

    Last modified: 11 May 2023 10:24 AM | Anonymous member (Administrator)
  • 11 May 2023 9:28 AM
    Reply # 13199570 on 13198401

    We are an official association confirmed by a lawyer.

    We have a group of original cabins that were part of a youth camp. They are all small with no foundation and purchased in the mid 80's. Since then, more traditional log cabins have been built. Most are modest but there are a few multi-million-dollar homes.

    It is this first group that pushed back on requiring winter plowing. They like to "remember the good ole days" when there was a double track trail with grass growing in the middle.

    Over time the road became impassable as more homes were built and traffic increased.  Fast forward to today. We originally had winter plowing  as voluntary, but it was hard to enforce (people would come up anyway). As a stop gap, we voted to make winter plowing mandatory going forward and give one-time exemptions to the original camps or anyone else that did not have a winterized cabin. These exemptions go away if the property is sold or the owner starts using the property in the winter.

    We did this to try to be understanding to those who bought a true summer camp 40 years ago for $20.000. It has become even more hard to manage and enforce. We have shifted our fees so that everyone spits 20% of the total budget evenly, then split out the rest of the budget for plowing vs exempt and to make it even more complicated, we also split into 3 zones with each zone pay a portion based on the milage of the road where their home is. (our road is 5 miles long).

    Most of the association believes that even members that do not come up in the winter get benefit from plowing. We also have members that pay for plowing that do not make it up every winter.

    Long and way too complicated, I know, believe me.

    The shared 20% satisfies some of the fair and Equitible, but as I tell the group, this is not a road usage fee, it is a road benefit fee. 

    Is making some pay and some not for plowing regardless of use fair and Equitible?

    I am looking for a way to justify dramatically simplifying the fee structure. Our current model is way too complicated and almost requires a road cop and investigator to enforce.



  • 11 May 2023 12:41 PM
    Reply # 13199842 on 13198401
    Anonymous member (Administrator)

    I suggest you form a dedicated committee or have the Board poll the membership, try to find a consensus, make recommendations for simplification, and hold a vote on the recommendations at a meeting called for the purpose. 

    Are you part of a non-profit corporation road association? If not, it sounds to me like you may be an informal association that might benefit from forming a statutory association. 

    Last modified: 11 May 2023 12:46 PM | Anonymous member (Administrator)
  • 11 May 2023 12:58 PM
    Reply # 13199857 on 13198401

    we are a nonprofit corporation with complete by laws in place. 

  • 11 May 2023 1:00 PM
    Reply # 13199860 on 13198401

    We have had several discussions and votes on the issue that have gone nowhere. we need 2/3 to change bylaws.

  • 12 May 2023 6:07 AM
    Reply # 13200496 on 13198401
    Anonymous member (Administrator)

    Conflict mediation might help. Try entering "mediation" in our Forum search engine. You could try the Maine Association of Mediators, or Family and Community Mediation (FCM). MARA is also having a workshop on conflict mediation at our conference on October 7, 2023.

    Last modified: 12 May 2023 6:14 AM | Anonymous member (Administrator)
  • 12 May 2023 8:24 AM
    Reply # 13200543 on 13198401

    Scott, I am not a lawyer or an English major.  I would like to offer my opinion(s): You have personified the road by saying "Also it is not for the use of the road it is for the benefit of the road." Roads cannot benefit, people can benefit.   

    If you divide the road into thirds and the owners pay by the location of their homes on the road then they are technically paying for road usage, since distance is a function of usage, wear and tear and necessity.

    Does everyone have the same right of way on your 5 mile road?  It seems that if they do not for example have access to a lake at the end of the road that the  fair thing would be to consider that in a "fair and equitable" formula.

    Finally, there may not be any court cases about "fair and equitable" because the cost of legal action is not justifiable to just paying dues.

    Hope this helps!

  • 13 May 2023 2:09 PM
    Reply # 13201125 on 13198401
    Anonymous member (Administrator)

    I think this illustrates why so many road associations have just gone with the simplest solution, i.e. everyone pays the same.  The more you try too hard to make it fair and equitable, the more variables someone will bring up. 

    You could, for example, take into consideration the number of feet of road frontage each person owns, or the assessed value of their property, or how many cars they own, or how heavy each of their vehicle is, or whether they have frequent deliveries made to their house, or how many trips per week they make over the road, or whether they always drive in the same two ruts or if they are careful to move over one tire width each trip so as to keep the road evenly packed and worn.  (This last sounds ludicrous, but during mud season it can make a huge difference in a person's impact on the road.) 

    It has often been suggested that to be fair, each person should pay based on the length of road that they use.  But consider this example:  To make it simple, let's suppose a road is exactly one mile long, and has ten landowners who each own property on both sides of the road for one tenth of a mile.  We can then divide the cost of maintenance of each tenth of a mile of road into ten parts to be shared by the ten owners, adding up to one hundred percent of the cost of maintenance of the whole road.

    The first owner will pay only for maintenance of the first tenth of a mile of road.  But since that section of road is used by all ten owners, the first person will pay only one tenth of the cost of maintaining that section of road.  Each of the ten owners will contribute their tenth of the shared cost of maintaining the first tenth of a mile of road, so that between the ten of them the entire cost of maintaining that section of road is covered.

    The second person will pay one tenth of the cost of maintaining that first section, which is shared by everyone, and will pay one ninth of the cost of maintaining the second tenth of a mile of road which is used by him and eight other landowners.   So between the nine of them, they will cover the whole cost of maintaining that tenth of the road.

    The third landowner will pay one tenth of the cost of the first tenth of a mile, plus one ninth of the cost of the second tenth of a mile, plus one eighth of the cost of maintaining the third tenth of a mile of road which is used by himself and seven others.

    Calculations would continue in that fashion until you come to the tenth person in.  That person will pay the entire cost of maintaining the last tenth of a mile which is used only by him, plus half of the next to last tenth of a mile which is used only by him and his closest neighbor, plus one third of the next tenth, one fourth of the next tenth, one fifth of the next tenth, etc until the first tenth, of which he pays only one tenth of the cost of maintenance because that section of road is used by everyone so all ten landowners share the cost. 

    So the first person contributes only 1% of the association's total road maintenance budget, but if my calculations are correct, converting all those fractions to decimals and adding them up, the last person in pays over 29 times as much, or approaching 1/3 of the association's total road maintenance budget.  Is that "fair and equitable?"  Chances are, the people farther in are going to refuse to pay, raising costs for filing Notices of Claim and forcing others to pay more to cover the cost of maintenance.

    But that formula still doesn't take into account other variables such as each person owning a different length of road frontage, which parts of the road may have culverts that need to be maintained or replaced, which parts of the road may be prone to erosion, etc.  Adding such factors to the calculation in an effort to be "fair and equitable" would be a nightmare.

    I think this comes into the same sort of argument as requiring people who have no school aged children to contribute their tax dollars towards the school budget.  If we all pull together for the good of the community as a whole, the burden on each of us should not be too great for any one person to bear.  (If it is a hardship on someone, others should pitch in a bit extra for the sake of their neighbor.)  The cost of annual road association dues may not be much more than the cost of hiring someone to plow your own driveway in the winter, yet what you get for your dollar is year-round maintenance for you AND your neighbors.  

    One other consideration is that in many subdivisions, each person's deed grants them a right of ingress and egress over the private road TO AND FROM the public road system.  That implies that they are not allowed to use more of the road beyond their property.  In my opinion, "fair and equitable" should require that each person be allowed to use the entire road or system of roads which their dues help to maintain, and to share that privilege - respectfully - with other association members who wish to do the same.  They may only use it to walk their dog or to get some exercise and fresh air, but that is nevertheless a benefit, and at least a token of appreciation for contributing to the entire cost of maintaining the road.

    As I said at the outset, many road associations have found that the simplest formula is best.  Think of your neighbor, stop complaining, and share the burden for the good of all.

  • 14 May 2023 11:33 AM
    Reply # 13201298 on 13200543

    Anonymous wrote:  You have personified the road by saying "Also it is not for the use of the road it is for the benefit of the road." Roads cannot benefit, people can benefit. 


    I guess I am not an English major either. I meant to say for the benifit of the road. Meaning owners have benefit of the road being there. 

    Anyway, I agree a single fee is the best option.

    Last modified: 15 May 2023 8:20 AM | Anonymous member (Administrator)
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