Maine Alliance for Road Associations
We are a non-profit organization that has 51 members on a 5-mile road. we are organized under 3121 but we do have by-laws. that are compliant with 3101. The way I read section one regarding cost sharing is that you either need to need a fee structure that complies with 3101 or the cost is split equally....
We have a situation where the changes to 3101 that now allow snow removal and plowing as regular Maintenace, and a few other changes now make our assessment no longer fair and equitable.
I see 2 options. adjust the by-laws to make the fair and equitable or simply default to equal shares as defined by 3121. Obviously, those getting the better deal don't want to change. They are a loud minority but have just enough people that will show up at the annual meeting so that we can't get the 2/3 need to change our by-laws (the 2/3 is a self-imposed limitation of the bylaws) We have been round and round on this and there is no agreement though most of the people want to move forward we are blocked. We also don't have anything in our by-laws that states what to do if we don't comply with Maine Law.
Now the big questions:
Should the board step in override the loud minority and only offer fixing the by-laws or defaulting to 3210?
Should the board just vote on what to do and make the decision?
What does it mean if we don't comply with the law? what are the consequences?
Wow, that's a lot of members to your association! Some thoughts:
Should the board step in override the loud minority and only offer fixing the by-laws or defaulting to 3210? 3210?
You must choose to use 3101 or 3121 in terms of assessments as to a fair cost to owners (3101) or all owners equally (3121), the ultimate would be what is the majority of 2/3's decision by members and note it in the bylaws.
When ever there's a new supreme court ruling or in this case a new change to our 23:3101 law, everyone scrambles to catch up. You are making very good faith efforts to adjust to the changes. Hopefully you are documenting meetings to prove you are beginning to address it. The reality of any federal, state or local law change, shows that reasonable time is needed to catch up to the changes. So give yourself, the board and members credit to begin adjusting to the change.
Based on your info, the minority sounds like majority if they have 2/3's vote. The by laws, budget and assessments does need to be drafted by the board to eventually have it up to date with the law, where members need to vote on it's approval but that takes a lot of time.
The board as I understand it is to carry out their duties, so they can recommend a decision, but it would need to be presented to the members for their vote of approval, especially changes to the by laws.
Maybe offer a special meeting. Hopefully there's a way to create negotiable options to both sides.
What does it mean if we don't comply with the law? what are the consequences? I am not sure what your implying. Violating a law isn't encouraged. Yes, there are lots of consequences.
You are clearing making efforts, so I would encourage more research and options from both sides.
Since our association is in Windham, and we are a public easement, our town does the plowing, thereby we are complying with the municipalities ordinances, thus not violating it, which is noted in the 23:3101, section 8.
Thanks for the thoughtful reply.
The people that are causing the issue are not the majority, but they usually have enough participation at the meetings (1/3) so that we cannot achieve the 2/3 needed for a by-law change. they are roughly 20% of the total membership.
We are asked what the consequences are of not following the law. I have given my answers to the group. I am looking for independent replies as mine have been questioned.
Thanks again, this is a fantastic group.
First, congratulations on working to try to see that you comply with the law AND satisfy the needs of your association. That can be a difficult balancing act, for sure.
Since you mention following 3121, I gather your association is pretty new, as that law only came into being in the year 2021. The first few years for a new road association can be challenging, especially with that many members. But if you can hang in there and collect enough dues and manage them well so people see the road IS getting maintained, hopefully things will settle down.
I think your reference to section 3210 was a misprint. I believe you meant 3121? You are correct that section 3101 allows you to devise your own "fair and equitable" assessment formula, and that section 3121 is the "default" position of everyone paying equally. I'm a bit confused as to what sort of road association you have. You say that you are a non-profit, but that you have "bylaws that are compliant with 3101." Am I correct in thinking that means you have not gone through the formal process of forming a Statutory Road Association, beginning with identifying all "benefited" parcels and having a meeting called by a Notary?
You say you are "organized under 3121." But section 3121 doesn't really have a structure. It simply kicks in when there is NO other road maintenance agreement of any sort, and says that in the absence of such agreement, each property owner will share equally in the cost of maintenance. That means that even if all you had was a verbal agreement as to how the road would be maintained, section 3121 would not override it. If you have a non-profit, then whatever the non-profit agrees to would override section 3121. But I think that you are correct that if the members cannot agree on an assessment formula, then section 3121 would be the default.
To be clear, section 3101 has included "snow plowing" since 2008. The words "snow removal, sanding and ice control" were added in 2013. So both pre-dated section 3121. The recent change in section 3101 didn't affect winter maintenance at all - but it did expand a road association's ability to repair or install pavement or reclaim. What new provisions are causing the disagreement? Or is snow removal a sticking point?
I don't think the Board can override a vote of the members. But the Board can try to lay down some ground rules about keeping meetings orderly and respectful. Make it clear that everyone WILL get a chance to speak, and that their concerns will be heard. After each person speaks, re-state their concern and ask if you understood them correctly. You could even write down a few key words from each person's concern on a white board or flip chart so everyone can see them. That can go a long ways towards de-fusing arguments. Remind them that if they don't like the default of equal payments, they need to find something they can agree on.
As far as consequences go, one possible consequence is that your road association simply becomes unenforceable because you have not followed the statutory requirements. That would mean that members could refuse to pay their dues, and your only recourse under section 3121 would be court action. That can be messy, expensive, and result in neighbors hating each other. Or if you tried to take court action against them to collect under section 3101, you could fail because the association is not legitimate. (See Sunshine v Brett - there's a link on the Resources page.)
The ultimate consequence is that your association is unable to collect sufficient dues, and the road doesn't get maintained. I have seen this happen to one young association. By the third winter they were unable to cover the bill for plowing, and a few year-round residents who needed the road plowed had to make extra contributions to avoid being snowed in. Annual meeting was described as "toxic." So few people showed up at the annual meeting that they didn't have the quorum required by their bylaws, so they couldn't vote to do anything. They ended up disbanding the non-profit and re-organizing as a Statutory Road Association. It took a few more years to get most of the members on board, but since then it's been working well.
Thanks again for the input.
Believe it or not we have been roughly organized since the 1990's. I have been there 10 years and on the board for 4. We have had a long, strange history. For years they thought they were strictly a voluntary organization. A former president paid a lawyer to write our original by laws and set us up as a non-profit for banking. They did everything except call that initial meeting to become a statuary organization. No one left knows the real reason why.
When I got involved, there was a lot of mistrust of the board because of all the "special deals" everyone had. We were unsure that we could require payment and require new owners to join. We contacted a lawyer and this same year 3121 was passed. He recommended that we not try and start up as a statuary organization. We have since cleaned up most of the special deals and the group as a whole agrees with our fee structure except for winter maintenance.
This group of people that are not wanting to pay for winter maintenance are some of the original members that don't want to pay because they were told that they would never have to. I was not there, but suspect they pushed back hard back then too and the board thinking that participation as voluntary took what money they could get. The cost of winter plowing and sanding have increased to a point where it is becoming so expensive that those of us that do pay are feeling taken advantage of. We have 5 miles of road, and our winter plowing contract is over $16k. Those paying winter maintenance pay $465 total per year more than houses literally right next door that don't
A few thoughts - re-forming as a Statutory Association could be grounds for overhauling your fee structure, and would give you the enforcement power of the Notice of Claim process.
But if you don't think that idea would go over well with the members, another angle you could try is to point out the advantages even the summer residents gain from snow removal. What if one of their cabins were to catch fire in winter? Do they all drain their pipes and shut off their heat, or do any of them need to have emergency winter access in case their power goes out or their fuel runs out? Might they want the option of coming up at some point in the winter for a weekend, or just to check on the place? In any of those cases, having the road plowed would be a benefit to them, albeit not as much as for the year-round residents. Could they perhaps be convinced to pay at least a small winter maintenance fee?
Does your association have a neighborhood watch program? That might be another selling point for winter maintenance. I know some people say they do not want a road plowed in winter because it increases the chance of vandalism in the months while they are not there. If they know their neighbors will keep an eye on their property and call them if they notice anything out of place, that could help them feel they get some benefit from having the road kept plowed so their neighbors have the ability to do that.
I strongly agree with Roberta's suggestion to reorganize but read on if you will.
Right up front I will say that the services of an attorney skilled in the matters of private road association structure will pay immediate dividends and perhaps the current board should consider (again) ponying up the cost of two hours of attorney time to settle the very first critical question I ask below. I am disappointed and not sure why the attorney you consulted before did not address the issue but it is a must start point.
When all is said and done, does your current association structure have the legal authority to assess, invoice, collect and enforce collection of road maintenance costs? If you believe so, what is it that you believe gives the association that authority? If not, then the board members are merely an amalgam of well meaning individuals that will need to sharpen their negotiating and problem solving skills because they have no power beyond persuasion and you can stop wracking your brain on bylaws issues.
If you want to lean on section 3121, good luck because that part of the statute says:
"a legal claim for payment of the amount owed may be brought against that owner by a residential property owner or owners who share a common benefit in the road, either jointly or severally."
One or a number of you must take the action personally. The section offers no hope for recovery of legal or court costs nor much else in guidance. In fact, just the existence of the nonprofit with bylaws and history of operation could totally disqualify the association from suing because, as Roberta said above, the statute only applies in the absence of an agreement.
Now to answer your questions: In my opinion:
Should the board step in override the loud minority and only offer fixing the by-laws or defaulting to 3210? The board makes decisions based upon what is best for the whole. If indeed bylaw changes are required the board drafts changes and calls for a vote. Otherwise you have anarchy that benefits none. And 3121 is briefly discussed above and elsewhere. It is useless for you.
Should the board just vote on what to do and make the decision? Regarding the level of maintenance, YES, if the bylaws so permit. The board is elected to govern and boards that get hung up trying to please everyone will be ineffective and will thus penalize the majority as well as the minority. The safety and convenience of your road and value of your property depends upon positive leadership. Of course, if the association has no legal authority to assess and collect they will also need creativity to cover the budget by only those who will pay.
What does it mean if we don't comply with the law? what are the consequences? None. You are not obligated by either 3101-3106 or 3121 to do anything! In fact, the Private Ways Act (3101-3106) is an enabling statute that merely says IF YOU DO THIS, THEN YOU CAN DO THAT. Meaning if you establish yourself as required by the statute and administer as required by the statute then you get the privilege of enforceability of your fair and equitable assessments. And once again, 3121 only applies to individuals, not associations, and requires nothing of anyone, only allows filing a legal action to collect.
If you think the bylaws are effective then you really need to read them carefully. Seldom do bylaws (seldom, not never) require more than a simple majority vote for routine matters such as setting budgets and assessments. And the vote may be limited to those attending (or proxy or absentee) not the entire membership. So take a careful look. Supermajorities are appropriate for bylaws changes but not for the efficient operation of a road association.
By the way, to become a Statutory Association no supermajority is required . "By a majority vote of the owners present and voting in person or by written proxy or absentee ballot, the owners may determine what repairs and maintenance are necessary and the materials to be furnished or amount of money to be paid by each owner for repairs and maintenance and may determine the amount of money to be paid by each owner......"
The Maine Alliance for Road Associations