Art, let me explain my lay person view of the statute.  The statute (Title 23 sections 3101-3106) does not set standards the violation of which makes something illegal.  What the statute does is permit those organizations that follow its mandates to file a claim against nonpaying members for the collection of the amounts due. The organization, if it follows the mandates of the statute, can reasonably expect to have its claim enforced by a court.  I call this an enabling statute - if you do this, then you may do that.  As such, a statutory associations can assess fees for just about anything it desires and members can vote to approve and then pay those fees if they choose.  However, the down side of doing so is the loss of reasonable certainty of court approved recovery of the errant assessment.  Statutory road associations are wise to stay very close to the provisions of the statute.    

So let me rephrase your question:  Will the assessment for legal fees incurred in defense of a law suit be upheld by the courts if a member refuses to pay the assessment? (Let's assume that all the procedures of the statute are followed including approval of the members as required by the organization's bylaws.) My answer to that question would a a resounding maybe, maybe not.  Certainly, legal defense fees are not mentioned in the statute under the definition of maintenance fees, they are not insurance, not interest but will they be judged to be "other costs, including but not limited to the cost of liability insurance.......and costs of administration."  (23-3101 paragraph 5). What part of "other costs, not limited to" do we fail to understand?  All of it!   So I suggest your rephrased question will have to be determined by the courts.

As an aside, keep in mind that votes approved in accordance with bylaws bind the entire membership, not just those casting assenting votes.

By the way, Art, if your question is not simply hypothetical we'd like to hear about the circumstances.  We often get questions about insurance and liability and while the statute does offer some immunity to officers and directors it would be beneficial to know of circumstances that are outside of the immunity offered and the outcome. 

The statute as I read it, Art, is merely a vehicle used by owners along a private road (etc.) to gather and decide how to handle and pay for maintenance of the road. It does not appear to me to attempt to interfere with, by expansion or restriction, the underlying rights to the road so I’m thinking using that argument to advance your grievances may not ­­­work out so well.

Apparently, you feel significantly enough aggrieved to take on the effort and costs of legal action to achieve a resolution in your favor.  If so, then why not attack at the very heart of both the statute and your own personal feelings?  The statute requires that each owner’s share of the total cost must be fair and equitable and approved by a majority of the owners.  Obviously, you do not believe the current formula is fair and equitable and I guess you feel that the majority is acting in a manner that is detrimental to you and perhaps other members of the minority. So, assemble an argument that proves your point, perhaps with examples on how others on the road are unjustly enriched by the current formula, and try to convince the court that you are correct. If the court agrees you will have won your point (after appeals, of course.) My opinion is that any other approach simply beats around the bush looking for technicalities that you as a lay person acting without counsel may be ill prepared to advance.  

One the issue of the road association assessing you for a portion of the legal fees arising from the defense of your lawsuit, if your association is insured the board will likely immediately hand the suit to the insurer to defend and bear the cost.  Of course, if you lose the case, you may be facing the insurance company looking to recoup 100% of its cost.  

Raymond, thank you for you insights.   I will digest your information and I have a copy of the insurance policy that I will go over.  One thing you said has me baffled: “If the court agrees you will have won your point (after appeals, of course.)”.  Would you please explain “after appeals”?

Roberta, thank you for your input.    Mediation does not seem a likely solution.   Since it is a voluntary process, the majority of owners see no conflict with everyone paying equally, and there is no justification, in their minds, for my expressed concern of inequity.  From the fact that a majority of owners  determine assessment methods as required by law, a mediation would then require that at least 16 owners would have to attend a  mediation session, and agree to a reconciliation.   The makeup of owners on this road is millionaires, business owners and wealthy retirees. (And yes, I do recognize that they face enormous property tax bills for their waterfront estates or cottages). I would then expect low attendance if any at all at a mediation session.   So that is out of the question.  

Looking at the forms for filing the lawsuit, I would be petitioning for a declaratory judgement, and exempted from court mandated mediation if I remember correctly.  

As for building resentment from my neighbors for my actions to seek fairness, I would rather, as the saying goes, live on my feet than on my knees.  

Thank you all for your input, past, present and future!!!!!!

AB