Maine Alliance for Road Associations
Can anyone share with me information on assessing fees to builders or homeowners for use of the road and/or damages to the road from heavy vehicles and equipment during construction? How to you assess fees and how do you monitor and collect those fees?
First of all, you should make sure your bylaws include a damage provision as part of your formula for assessing each member's share of the cost of maintenance. The law requires that, "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."
At our 2020 MARA conference, our attorneys stressed the importance of making sure you follow the law to the letter, and that includes making sure your method of determining the dues is clearly written into your bylaws. If it ever came to a court challenge, you would want a judge to be able to look at your formula and decide that it's "fair and equitable." If one person causes unusual damage to the road, one would think a judge would see it as fair to make that person pay to repair the damage rather than making everyone else share the cost.
It can be difficult to prove who did damage to the road. If there is damage, take lots of pictures. Ruts show up best in photos taken in early morning or in the evening when the light is low so you get a shadow that shows the depth. Also put a ruler or something in the picture to show the scale. Zoom in to get a clear picture of any tread marks. If you can, get a picture of contracting equipment in the background of a picture that shows the damage, and then get closeups of the equipment showing matching tire treads, and license plates or company logos.
For damage by people who pass through on ATV's or 4wd pickups, your best defense is a trail camera, placed so it will clearly show the vehicle and license plate if possible. It's also good to take pictures before you expect damage, like just before mud season, just before hunting season, just before a holiday weekend when a particular offender has been known to show up before, just before someone starts building or renovating a house, etc.
We don't define damage as including every day wear and tear, although when you have people who habitually drive in the same two ruts, it's tempting! We do include things like ruts left by ATV's doing donuts in the gravel, or growser tracks in the pavement where someone unloaded heavy equipment. If someone orders a delivery of fuel or lumber or other heavy items just as the frost is going out of the road, that can also cause damage. Try to make sure people plan ahead so this doesn't happen. Some fuel companies already have this on their radar.
As for assessment, you can either ask the person who damaged the road to repair it, (many contractors plan to set things right and leave things as they found them but don't repair the damage until they're done,) or you can hire someone to repair the damage and add the bill to the annual road association dues with an explanation and a copy of the bill attached.
Another possible technique would be to include in your bylaws a flat surcharge for any construction, or requiring contractors to post a bond. I am not an attorney, so please take all of the above as just my experience, not legal advice, and consider it for what it's worth.
Man, Roberta. That's what I call a "doozer" of a reply. Got 'em dead to rights! (I think that phrase works, I've not used it before)
Our by-laws have this wording included in our Article 9, Maintenance Fees:
Section 6. Members responsible for unusual or detrimental use of the road or shore right-of-way are expected to contribute additional maintenance fees. Considering such use, the membership may also assign individual Members additional maintenance fees.
I hope this helps.
That's rather vague wording. I wonder if it ever got challenged in Court whether a judge would see it as passing the "fairness" test.
The phrase containing "are expected to contribute" is a hold-over from the by-laws of our informal association. Members seem to like the pointed suggestion. Unusual use would be an owner with a major construction project needing multiple heavy trucks and equipment over several weeks or more. Building a new house or a major renovation would fall into this category---sea wall construction after major storms. We've had several of these. Detrimental use would be obvious damage to the road or drainage ditches---a heavy vehicle getting onto a soft shoulder leaving deep ruts, for instance.
Often the owner responsible for unusual use will make a voluntary contribution to the Treasury of an extra 1/2 to one full share before or at the next annual meeting. Almost any additional contribution by the offending owner seems to satisfy the membership. It must be the "recognition" of unusual use that is important. We only had once incident when we had to ask owners to contribute additional fees. We have not yet had to vote on it.
In case of bringing it to a vote, we would probably write up the specific detrimental incident or unusual use, include photographs as suggested above, have membership vote to approve or disapprove the additional fees, and include the above in the minutes for review by the judge. I doubt that our membership would be frivolous.
We will probably keep our current wording. I'd be interested, Roberta, what language do you suggest? Do you address these matters in your by-laws?
Our bylaws say, "Any damage to the road by an owner, his/her guests, or his/her contractors beyond normal wear and tear shall be the responsibility of that owner, and the cost of any repairs necessitated by such damage may be assessed against said owner by the Board of Directors." We did have to use this clause once, when someone's teenage son did donuts in the fresh gravel with an ATV. With that member's agreement, we hired someone to grade out the ruts with a York rake, and added the cost to that member's dues the following year. The wording of our bylaws pins the amount of the extra assessment to the cost of the repair of the damage, so there is no question as to what that amount should be.
I like this wording. Your by-laws cover damages well. I guess we also like to lay a little "guilt trip" on owners for their projects that may cause excessive disturbance or wear and tear on the road.
In a similar vein, we encourage, and sometimes get, voluntary contributions toward the cost of road maintenance projects that provide benefit to some properties more than others. These contributions help owners who may be struggling to pay their share by lowering the amount per share.
The Maine Alliance for Road Associations