Maine Alliance for Road Associations
Have any of the membership dealt with voting issues with regard to property owners/members who have not paid annual assessments. We are a small Association and strive to work with members who have financial hardships. We have provided a delay in payment (approved by the Board) and forgiveness of annual assessment (approved by the membership). We currently have members who have not paid one or more annual assessments and have not requested a hardship exemption. Several members have asked that these members not be afforded voting privileges.
I asked about this issue a few years back and received several replies that were helpful. If you use the keyword search function and search "voting" you will find the thread. In a nutshell, the answer was 'no'. Just like the town or state cannot prevent you from voting if you don't pay your taxes.
The title of the topic was VOTING ISSUES: NON-PAYMENT OF DUES AND ABSENTEE BALLOTS, posted in 2013. Hope this is helpful.
The old version of the DEP road maintenance manual included sample bylaws that said voting rights could be suspended if a member didn't pay their dues. But upon legal advice, they have changed that. You cannot deny a person the right to vote. The law specifies in 23 MRSA 3101: "4. Voting. Each parcel of land benefited by a private road, private way or bridge represents one vote under this section; except that, if the bylaws of the association authorize more than one vote, then each parcel may represent no more than 2 votes under this subsection. "
There could be a good reason for someone to withhold their dues, i.e. in a case where the member believes there is misappropriation of funds. (I'm not saying this is the case with your road association, but merely giving an example of why the right to vote cannot be denied.) In such a case, that person's vote might be their only way to call attention to the fact that there is something going on that other members should question.
In your case, if the person shows up to vote, that gives you a possible opportunity for taking them aside and asking them face to face in private if they need assistance, and reassuring them that there is no shame in asking for help. Point out that if they were in a position to help someone else in need, they would likely do so. All of us go through times when we can help others, and times when we need others to help us.
My questions are aligned with an 81 lot, "Ad Hoc" road association, attempting to change into a Statutory one. Any input would be greatly appreciated. Without this association, I would never have investigated the law on a non payer having the right to speak or vote at a meeting. Thanks for sharing your questions and comments.
Based on the present law:
The law specifies in 23 MRSA 3101: "4. Voting. Each parcel of land benefited by a private road, private way or bridge represents one vote under this section; except that, if the bylaws of the association authorize more than one vote, then each parcel may represent no more than 2 votes under this subsection. "
1. If we do not get the votes to move forward with a legal road association, can the present "Ad Hoc"association continue to deny "non-payers" their rights to speak and vote at the annual meeting, strictly based on the current by-laws of a volunteer organization?
2. Since the road is identified as a private way by the DEP, Penobscot County and the town, what is the best course of action in communicating with The Board and other members concerning the rights of "non-payers" to vote?
After a few years of occasionally reading on this site and learning about road associations, I am now a member of MARA. I appreciate the posts and opportunity to ask questions. It is my hope that our new president will become a member this summer.
Technically, you are correct that if your road association is not a "statutory" one set up under 23 MRSA 3101, you are not bound by that series of statutes; however, the reasons that statute requires members to be allowed to vote still exist. If you think back to the American Revolution, one of the reasons we split off from England was because we became frustrated by "taxation without representation." Our country is founded on (among other things) the belief that a person should have some say in how his money is spent.
On the other hand, the U.S. Constitution prohibits states from making or enforcing laws that impair the obligation of contracts. If you have a non-statutory association, its bylaws would be a sort of contract between the members. Members who have agreed to what is in the bylaws should be bound by them. Then the question remains as to whether the state can prohibit a statutory road association from having a contract that allows voting rights to be withheld. I am NOT an attorney, but I'd have to say there is room for debate here. The Constitution also prohibits "involuntary servitude," i.e. being forced to work without pay, but that leaves the door open for "voluntary servitude" - choosing of one's own free will to work without pay. Similarly, I don't see why a person couldn't agree in a contract to give up their voting rights if they refuse to pay. Bottom line - do what seems to be morally right.
There probably is little danger that non-paying members would out-vote paying members, so denying them their vote is probably more a matter of trying to give them incentive for paying their dues. I do know of one non-statutory association that had loss of voting rights in their bylaws and was forced to use it because they had more non-paying members than paying members. The association ultimately folded for lack of funds. They then formed a statutory road association, and have gained several paying members each year since then, thanks in part to people seeing that the road is actually improving, and in part to the enforcement tools available to a statutory association. Their statutory bylaws were modeled on the old guidelines and do include loss of voting rights for unpaid members, but they have never had to invoke that rule since going statutory, because non-paying members never show up to vote anyway. They are planning to vote to correct their bylaws to eliminate this provision at their next annual meeting.
I have one other concern about your situation. You have said that the DEP, the county, and the town have designated your road as a "private way." I would be extremely careful about the use of that term, as it has multiple conflicting definitions in Maine law. Do they mean that it is a road that is privately owned and maintained, and over which the owner(s) can restrict passage, as defined in 29-A 101 paragraph 58? If so, to avoid confusion I would use the term "private ROAD."
On the other hand, 23 MRSA 3021 defines a private way as a public easement. Under title 23, the term "private way" could mean that it's a road that used to be a public town or county way, but public maintenance has been either officially discontinued under 23 MRSA 3026-A (or its predecessor, 3026,) or abandoned under 23 MRSA 3028. Either of these actions make the road a "public easement," but earlier versions of section 3026 used the term "private way." In either case, under section 3021 the road remains open to unrestricted public use by foot or motor vehicle in spite of the fact that there is no longer any public maintenance. That gets into another whole can of worms, due to questions of whether it's right to force private individuals to pay to maintain a public road, over which they cannot restrict public traffic. (Yet another example of taxation without representation, and involuntary servitude!) So I hope your "private way" is actually a "private road" - one that was privately laid out and built, and which has never been accepted as a public road.
I was hoping you might respond, Roberta! I am enjoying the expansive and thought provoking perspective you have painted for us.
I want to thank you for taking the time to not only answer, but open my eyes to a much needed conversation about our road. You posed a question that made me rethink our stance: What is the definition of our road, a private road or private way?
I’m researching info off of your Roadways site. Our Association has two lots recently acquired by the Orono Land Trust. One lot is a conservation easement. The road itself is owned by the University of Husson.
So now more questions pop up.
Are we a private road or one with a conservation easement that the public may access? Does this change our road status?
*On this deed: Exhibit A Right of Way Also, conveying to the Orono Land Trust, a non-exclusive easement for access by pedestrian and motor vehicle from Birch Tree Drive to the above-described parcel of land in the easement as is described below. The easement shall also allow for creation of a 2-4 car parking area and parking at the entrance of the easement area.
I will continue to research on your site, and wish to thank you for bringing this to our attention. We realize you are not a legal entity, but appreciate your input concerning your personal experience in this subject matter.
Wow, what a tangled, convoluted set of circumstances! It seems you have done pretty thorough research.
Under 23 MRSA 3101, any parcel of land benefited by the way should be included in a statutory road association. That means that both the land trust and the University should be notified of the formation of the road association, and should be paying members. Their activities require use of the road, and therefore result in wear and tear on the road - especially since it appears on Google Earth that there is a large tract of land that has been used for woods harvesting. That means heavy trucks, which take a serious toll on a road.
Getting the University to agree to pay may be another story. University of Husson is a private entity, but gets favor from the government because it's an educational institution. They should be seen as a private business.
Whoever is making money by harvesting wood off of their property should be responsible for covering the necessary costs. The residents on the road should not have to be saddled with the cost of providing an industrial grade road to support that landowner's woods harvest.
Apparently the original subdivider granted easements to the road when he sold the lots. On the tax maps, it looks like there are some lots that are crossed by the road, and some lots that don't actually touch the road. It would be interesting to see what it says on each of their deeds. You say, "The deeds are quite interesting as they say the landowner owns the land across the road to their newly purchased lot, but that University of Husson is still the owner of the road." I'd like to see the exact wording in those deeds. Do they grant the land to the lot owners while retaining a right of way for the University, or does the University hold title to the land, but the lot owners have easements over it? What other parcels of land does the University still own, so as to want to retain the road?
As for the legal status of the road, it would not qualify as a public easement ("private way") even though the public has a right to access the Land Trust land and the University land. A public easement is open for the public to use freely any time they want, where in your case there is a limited purpose for the public access. Your road should qualify as a private road, not a "private way" (public easement.)
The Maine Alliance for Road Associations