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Maine Alliance for Road Associations

fair and equitable

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  • 15 May 2023 8:40 AM
    Reply # 13201562 on 13198401

    I will have to disagree with the concept of equal pay unless a road has utility for everyone.  By utility I mean that there is a lake for example, accessible to everyone on the road, etc. I will also agrue that there is no data to support Roberta’s claim: ”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.”  And yes there are many variables but the most harmful are from those where no attempt is made to be fair and equitable. Unfortunately Title 23 MRS 3101 is complex and vague and is the single biggest reason for the issues that arise here in Maine that we know from this blog and the many we do not know about.  My conclusion is that equal pay punishes victims. Equal pay is easy but it is often the wrong formula.  

    I have taken Roberta’s information above and created a spread sheet on Excel to compare two situations of equal pay and pro-rated payments.  It took me 30 minutes to create and formulate this worksheet that any road association can use to figure out individual assessments. 

     As a matter of fact I will offer to send a similar spreadsheet out to anyone who will want to calculate assessments on a prorated basis or even a measured basis from actual road measurements a free workable copy as an.xls file.  If you are a memeber of MARA just look up my profile for my email address and send me an email with the heading “Spreadsheet”.Please have a look at the attached and you will see why “fair and equitable” is a “must”.

    1 file
  • 15 May 2023 4:56 PM
    Reply # 13201875 on 13198401
    Anonymous member (Administrator)

    A couple of thoughts on the fair and equitable issue. I've seen many responses to this discussion and apologize in advance if my thoughts are duplicative.

    Have those individuals who do not want to pay for plowing thought about the risk of loss if first responders could not access their home/other property because the road was not plowed? I have to wonder how that individual's insurance carrier would assess a claim for loss in that situation. Also, could the association's insurance be attacked for lack of plowing?

    Regarding the question on paying for only that portion of the road that a homeowner uses to get to their home, are those people never using the remainder the road?  In other words, do they ever walk the road, whether just out for a stroll or to go to a neighbor's house or to get to a trailhead or to access other common land or an easement?

    Do any of the by-laws address the original intent/purpose of the association and how the road was to be used by the road association members?

    Last modified: 11 Jul 2023 7:58 AM | Anonymous member (Administrator)
  • 16 May 2023 6:12 AM
    Reply # 13202089 on 13198401
    Anonymous member (Administrator)


    I cannot agree with you that position along the road should be the major determinant of share of maintenance fees. I agree most heartily with Roberta's thoughts on "fair and equitable".

    With respect for your opinion, Art, I am interested in your answer to the following question:

    Should people in rural Maine pay for most of the highway construction and maintenance costs? 

    Last modified: 16 May 2023 8:35 AM | Anonymous member (Administrator)
  • 16 May 2023 9:07 AM
    Reply # 13202148 on 13198401

    Erin asked: "Do any of the by-laws address the original intent/purpose of the association and how the road was to be used by the road association members?"

    My thoughts are that we are still talking about private properties with deeded rights that a road association, even by majority vote cannot delve into under current statutes.  MRS 3101 allows assessing for maintenance.

    Andrew asked: "Should people in rural Maine pay for most of the highway construction and maintenance costs?"

    Everyone pays for State Routes.  Cities and towns pay for road maintenance for non State Routes. Highways (Interstates) are paid for by the Fed and State and by Tolls.

    If you jump on the interstate in Kittery and exit in Augusta you pay for the road you use and not for the entire toll ending in Fort Kent.  You pay for what you use.

    If you ran MDOT,  you would comparatively, by your expressed opinion, want any driver on the Interstate to pay for the Kittery to Fort Kent toll no matter where they enter or exit.

    In my attachment above, if you have looked at it,  it would seem that you prefer to punish the minor road user and reward the major road user... because it is easy(?)   As Mr. Spock would say "You are highly illogical."

    Last modified: 16 May 2023 11:22 AM | Anonymous member (Administrator)
  • 16 May 2023 9:48 AM
    Reply # 13202178 on 13198401

    one Problem with the pay per mile is if there are disproportionate numbers of people at the low mile or high mile end.

    Until recently most of our members were in the 5-mile group. Changes to the formula to make the low mile people pay more would make only a small difference to the bulk of the people on the 5-mile end. I wrote it off as it was not worth the debate to make someone pay $100's more if the people at the far end only saved $20-30.

    What is new in our road is all of the new development is on the short end of the road Mile 2 and 3. if these new homes only use (for the most part) Mile one and two and cause the need more maintenance only on that first part, why should the mile 5 people pay for more of that work?

  • 16 May 2023 11:53 AM
    Reply # 13202276 on 13198401
    Anonymous member (Administrator)

    Good point, Scott.  Art, you used my example of every landowner having the same amount of road frontage, and use of the road being divided into equal tenths.  But as Scott pointed out, if most of the landowners are concentrated in the first part of the road, their minimal dues are not going to contribute enough to maintain the whole road, which means that the one guy way out at the end is going to have to pay the lion's share to make up for it.  

    Take the example of the road my daughter lives on.  37 of their 55 members own property along the first mile of road, which is paved.  Most of them are year round residents and use the road daily.  Several of them gripe regularly about the condition of the pavement, and want everyone to pitch in to repair it.  The remaining 18 members own land on the second mile of road, which is not paved.  Only two of them have houses.  The rest of the landowners make only occasional use of the road.  (Should they share equally in the cost of repairing the pavement?)  Of the two along the second mile that do have houses, one comes up on occasional weekends.  The other house is way out at the end after another large tract of land.  The people bought that lot because being out in the boonies and on a gravel road, the land was cheap enough for them to afford.  At the time, only the first half mile was paved, and they were dismayed when the second half mile got paved by a developer, because they knew that would raise maintenance costs.  They built their house themselves out of rammed earth and tires with volunteer labor to help when needed, because it was what they could afford.  If the road is muddy they park at the end of the pavement and walk the rest of the way so as not to damage the road.  They spend hours contributing maintenance to the gravel portion of road, at no charge to the association.  According to your formula, they would pay much more in dues than the other full time residents. 

    Art, your chart makes it look as if the calculations according to distance are simple.  They are not, because lots are not always the same exact size as I proposed in my simplified example, and because there are so many other variables - culverts being one of them, as you mentioned.  My point is that claiming payment according to distance of road used is "fair and equitable" creates other unfairnesses and inequities.  If you're going to take one inequity into account, you will have to take others into account as well.  For example, if a person only visits their land once a year, is it fair for them to pay as much as the family that uses the road several times daily?  Is it fair for people who intentionally bought land on a gravel road and didn't want the road paved to have to pay to repair the pavement?  Is it fair for those in the low population density part of the road to have to pay most of the cost of maintaining the high density part of the road?  You said, "... owners who travel a long road should not rely on their neighbors to pay for their choice of location along a private road."  But if they made their choice of location based on the low price of remote land on a gravel road, should they have to pay the higher cost of maintenance of the paved road that serves those who chose to live where the land was more expensive?  When I have time, I may take you up on your offer to calculate the dues based on actual measurements of my daughter's road.  I will be very surprised if the result appears "fair and equitable."

    Last modified: 16 May 2023 1:44 PM | Anonymous member (Administrator)
  • 17 May 2023 12:38 AM
    Reply # 13202594 on 13198401

    Allow me to take a stab at your original question – are there cases that address what is not “fair and equitable?”.   You have not indicated the exact form of your road association only that an attorney has said you have “an official” association.  However, you quoted from the Private Ways Act in your initial post so I will assume that you have a statutory association that must be governed in accordance with the statute.

    Sometimes you have to bracket your research when you are looking to determine what something is or is not and try to get your head wrapped around concepts that may not be clear on the surface.  

    There is actually at least one case where the topic of fair and equitable is mentioned even though that was not the issue in the case and the comment was made in a footnote.  In 2014 the Maine Supreme Judicial Court in Sunshine v Brett in a footnote opined that “Consideration of the type and frequency of use of the private road is entirely appropriate in determining a fair and equitable method of allocating the costs associated with maintaining the road.”

    To settle the major issues of the case the Supreme Judicial Court looked to the statute for guidance. The court said “The first step in statutory interpretation requires an examination of the plain meaning of the statutory language in the context of the whole statutory scheme…… In construing the plain meaning of the language, we seek to give effect to the legislative intent and construe the language “to avoid absurd, illogical, or inconsistent results”…… Only if the statutory language is ambiguousthat is, reasonably susceptible to more than one interpretation - will we consider other indicia of legislative intent.”  Let that thought sink in.

    Let’s skip to another case – Tisdale v Rawson - 2003. The Supreme Judicial Court was reviewing on appeal a case where an association had switched the assessment method from per parcel to per residential unit on a parcel and also started charging seasonal residents for snow plowing.  The association’s reasoning was clearly debated and settled at an annual meeting.  One owner did not pay claiming that assessment method (not assessed based upon property value which might be construed to mean not fair and equitable) was an unconstitutional tax, among other things.  The Supreme Judicial Court noted that the lower court (Augusta District Court) “found that the Association properly followed the Act’s procedures and it’s assessment method had a rational basis.”  In ruling against the owner, it also explained why the assessment was not a tax but that is not important to the topic at hand.

    What should we make of these two cases (other than I am an obvious insomniac)? Both cases involved relatively small amounts of money yet both went all the way to the state’s highest court.  One case involved a challenge to the method used by the association assessment scheme – presumably the offending owner did not feel the assessment was fair and equitable.  References to the method of assessment was made in both cases.  As was clearly illustrated in Sunshine v Brett the court will first look to the statute to determine legislative intent and not offer its own interpretation unless the legislature’s intent is unclear.  Obviously, the court does not feel that “fair and equitable” is ambiguous as used in the Private Ways Act as long as there is a rational basis for the method used.  

    Taken “in the context of the whole statutory scheme;” - i.e the statute allows owners to organize and establish rules under which it will operate (bylaws), requires identifying and notifying all owners, requires meetings at which expenses and assessments will be discussed and voted upon - the rule of the majority will determine what exactly is fair and equitable for the members of that association as long as the method is not absurd, illogical, or (has) inconsistent results.  In other words, apply the plain language meaning of the wording to determine what is not fair and equitable – or what is.

    All that does not solve your problem, but it does answer your question.  To solve your problem, you will have to convince the majority your method is fairer and more equitable than what now exists which just very well may be absurd, illogical or inconsistent.

  • 17 May 2023 8:57 AM
    Reply # 13202739 on 13198401

    Raymond makes a good case to simplifying the "fair and equitable" dilemma.  It requires an open and honest discussion by an association's owners.  There ends up in those discussions from my experience two or three options for assessments.  In the end the majority decides for everyone. The majority may be at the beginning part of the road or in the middle or at the far end.  And in the end, the individual choices for voters will end up to be: “I am voting for the least costly assessment method for myself.”  And where the majority resides, their votes will command.   Therein lies the death of the meaning and intent of “fair and equitable”.  It is human nature to not want to pay more than absolutely necessary.  MRS 3101 needs a revamp, but is fine for Insurance companies, lenders and realtors: They get what they want: A new source of premiums, assurance that loans do not go into default, and sales go through without a hitch respectively.

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