It turns out this bill wasn't introduced for the reason I expected. It was requested by a road association which was set up as a non-profit, and therefore shouldn't even have been bound by 23 MRSA 3101-3104. They had one member who had not paid in years, and had piled up overdue dues in the thousands. The association took the person to court. But the judge interpreted section 3102 not as limiting the amount of dues that could be charged to a member per year to 1% of their municipal evaluation, but rather as limiting the amount the road association could recover on unpaid dues to 1% of the total owed. As a result they recovered less than $100, (I think it was around $60?) only 1/100th of what was owed. So I'm putting in follow-up testimony as shown below. (Sorry I didn't get around to posting this sooner, as the work session is Apr 12, 2017 .)
Follow-up testimony on L.D. 1042 by Roberta Manter of Maine ROADWays
Senator Davis, Representative Martin, Ladies and Gentlemen of the State and Local Government Committee:
This bill proposes a change in the last sentence of 23 MRSA §3102. But upon careful reading, I realize that what is really needed is to move the last sentence of §3102 to §3101 (5). (I have attached the relevant sections, with the pertinent parts in italics for your easy reference, and I also include my proposed amendment.) If you read §3102, most of the section has to do with the procedure for recovering unpaid dues from a member of the road association. But the last sentence has to do with determining how much each owner can be assessed for his share of road maintenance cost annually under §3101. Wouldn’t it make more sense, then, to make it part of §3101 (5), which deals with the process for determining each owner’s share?
After last week’s hearing, I spoke with the gentleman who requested this bill. The road association of which he is a member took court action to recover several years of unpaid dues from another member. If I understand correctly, the judge read the last sentence of §3102 as limiting the amount a road association can recover on unpaid dues to 1% of the total they owed. The road association was owed several thousand dollars, but recovered less than $100. But read §3102 carefully. Clearly it’s intended only to limit the amount an owner can be asked to pay as dues in any calendar year to 1% of their municipal property valuation. That’s a HUGE difference.
I believe the confusion was largely due to this sentence being included in the section that deals with recovery of unpaid dues, rather than in the section that deals with determining an owner’s share of the cost. The last sentence of section 3102 says, “pursuant to the provisions of section 3101,” so why not put it in section 3101?
As an example, if a person owns a lot which the municipality values at $30,000, the most a road association can assign to that member for his share of road maintenance costs is 1% of that amount, or $300 each calendar year. If that member refused to pay his dues for ten years, he would by then owe $3,000. Under §3102, the road association should be able to recover that amount in full, PLUS costs of the suit and reasonable attorney’s fees. - not a mere $30.
The ambiguity in the law that led to this miscarriage of justice needs to be corrected.
My Proposal:
- Raising the limit from 1% to 2% of municipal property valuation, or even to 1.5%, would be helpful to road associations that have many low-valued undeveloped lots.
- It would also be helpful to clarify that “municipal property valuation” refers to the valuation before any deductions such as tree growth.
- I believe the requester’s problem would be best addressed by deleting the last sentence from §3102, and inserting similar language into §3101. See my proposed amendment below.
Thank you for considering my proposed amendment.
Current law (Pertinent parts italicized)
23 MRSA §3102.
Commissioner's or board's duties; neglect of owners to pay
The commissioner or board chosen under section 3101, with respect to the private road, private way or bridge, has the powers of a road commissioner. If any owner, on requirement of the commissioner or board, neglects to furnish that owner's proportion of labor, materials or money, the same may be furnished by the other owners and recovered of the owner neglecting to pay in a civil action, together with costs of suit and reasonable attorney's fees. Such civil action may be brought in the name of and by the road association created pursuant to this subchapter and the decision to bring that civil action may be made by the commissioner or board or as otherwise provided for in the road association's bylaws. The commissioner's or board's apportioning of the cost of repairs to the road undertaken pursuant to the provisions of section 3101 may not exceed 1% of an individual owner's municipal property valuation in any calendar year. [2013, c. 198, §8 (AMD).]
(Propose to delete final sentence of §3102)
23 MRSA §3101. 5. Commissioner or board; assessment for repair, maintenance and other costs.
The owners of parcels of land benefited by a private road, private way or bridge at a meeting called pursuant to subsection 2 may choose a commissioner or board, to be sworn. 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 for other costs, including, but not limited to, the cost of liability insurance for the officers, directors and owners and costs of administration. 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. * The commissioner or board shall report the outcome of all votes to all the owners by United States mail within 30 days. Special assessments for emergency repairs and maintenance may be made at a duly held meeting called for that purpose. Emergency repairs and maintenance are those actions necessary to maintain or restore the functionality of the private road, private way or bridge.
Propose to insert the following at * above:
An individual owner’s share of the total cost in each calendar year shall not exceed 1.5% of that owner’s municipal property valuation before any deductions such as tree growth.