The Maine Legislature has recently passed L.D. number 1325 - An Act To Ensure a Public Process When Discontinuing or Abandoning a Public Road

WHAT DOES THE BILL DO?

This bill will not affect every road association, but it should provide some valuable recourse for those road associations that are established on public easements. (If your road was once a town or county road, but has been officially discontinued, this may apply to you.) There is an important distinction here: on a private road, a road association may post or even gate the road to limit use to members of the association and their guests. If the road is a public easement, on the other hand, the association is prohibited from restricting public traffic.

The main potential benefit of this law for these road associations is that it establishes a “cause of action,” allowing abutting landowners to file suit against anyone who damages a public easement with a motor vehicle, and recover costs and attorney fees if they prevail. This could be a valuable provision for road associations on public easements. In the past, members of the public have been free to use these roads without obligation, and therefore there are some who use them irresponsibly, causing costly damage. The new law will provide a method of recovering for such damage.

Although this bill does not apply to roads that were laid out as private roads, it will apply to town or county roads that are officially discontinued or abandoned because a Town can no longer justify the cost of keeping them in repair with public funds. In many cases, if owners of abutting land wish to keep the road passable after the discontinuance, their best recourse may be to form a road association. Title 23 section 3101 authorizes road associations to be formed on public easements.

Other provisions in the bill include the following: It sets out the process for discontinuance of town roads in clear steps; requires that a notice of discontinuance be filed with the Registry of Deeds and with the DOT; requires that upon official declaration of abandonment of a road, notice of the abandonment must be filed as with discontinuance; and encourages (although it does not require) towns to inventory their abandoned and discontinued roads.

WHAT IS A PUBLIC EASEMENT?

Under current Maine law, (effective since the fall of 1965,) when a Town officially discontinues a town road it automatically becomes a public easement unless the article for discontinuance specifies otherwise. In 1976, another law was passed which says that when a town road is abandoned due to not having been kept in repair with public funds for thirty years, it also becomes a public easement. A public easement provides access by foot or motor vehicle, and may also provide an easement for utilities. According to the Maine Supreme Court, the public has an “unfettered right of access” over these roads, but NO ONE is responsible for providing maintenance.

THE PROBLEM TO BE SOLVED

Public use of these roads in the absence of public maintenance or repair inevitably causes damage, eventually destroying property access. This leaves owners of abutting land with two choices: either maintain the road for public use at private expense, or lose access. Many problems have resulted from towns not following proper procedure when discontinuing roads because the laws were so confusing. Lack of records made it difficult for buyers to know the exact status of access to the land they were buying. The retention of public easements over these roads, which was supposed to avoid causing properties to be land locked, has opened the door to abuse, allowing public use in the absence of public maintenance to destroy all reasonable property access. In many cases this has also led to massive erosion, dumping non-point source pollution into our streams and lakes.

SHORTCOMINGS:

The bill falls short of fixing the fundamental unfairness of allowing the public to use (and destroy) a road for which the public bears no maintenance responsibility. While road associations provide a method of getting all the abutters to share in the cost of maintenance, if they cannot restrict public traffic they are still using private funds for a public benefit.

If the easement serves residences and is to remain public, the public should keep it plowed and passable for emergency vehicles. If a municipality is unable to assume that expense, the easement should be made private so that the private land owners can keep it passable for themselves and not be expected to also contend with the damage caused by unrestricted public traffic.

This law should at least provide some clarity for roads that are discontinued in the future, and hopefully at least some towns will follow through with the suggestion to catalog their roads. A lot of friction could be avoided if it were a simple matter to pull up records showing the legal status of a road.

WHEN WILL IT TAKE EFFECT?

It will go into effect 90 days after the end of the current legislative session.