What is Maine law regarding discontinuance of Town ways?
The applicable laws can be found below. For further explanation, go to the Discontinued Rd tab. NOTE: Section 3026-A became law in 2016, and was amended in 2017. It replaced section 3026, which appears at the bottom of this page. Section 3028, Abandonment, apparently did not get amended to reflect this change, and as of this writing still refers to the old section 3026, which no longer exists.
A municipality may terminate in whole or in part any interests held by it for highway purposes. A municipality discontinuing a town way or public easement in this State must meet the following requirements. [PL 2015, c. 464, §5 (NEW).]
1. Notification of discontinuance to abutting property owners. The municipal officers shall give best practicable notice to all abutting property owners of a proposed discontinuance of a town way or public easement.
A. For a proposed discontinuance of a town way, the notice must include information regarding the potential discontinuance or retention of a public easement, including maintenance obligations for and the right of access to the way under the discontinuance or retention of a public easement, and information regarding the rights of abutting property owners to enter into agreements regarding maintenance of and access to the discontinued way. [PL 2017, c. 345, §1 (NEW).]
B. For a proposed discontinuance of a town way that is abutted by property not otherwise accessible by a public way, the notice must include information, in addition to the information required in paragraph A, regarding the right of abutting property owners to create private easements and the municipal requirements under subsection 1-A. [PL 2017, c. 345, §1 (NEW).]
Paragraphs A and B apply to town ways that are not discontinued as of October 1, 2018.
As used in this subsection, "best practicable notice" means, at minimum, the mailing by the United States Postal Service, postage prepaid, first class, of notice to abutting property owners whose addresses appear in the assessment records of the municipality.
[PL 2017, c. 345, §1 (AMD).]
1-A. Discontinuance after October 1, 2018 of a town way with abutting property not otherwise accessible. A municipality may not discontinue a town way that is not discontinued as of October 1, 2018 pursuant to this section if that town way is abutted by property not otherwise accessible by a public way, unless the municipal officers have complied with this subsection.
A. The municipal officers shall wait one year from the date of notice provided pursuant to subsection 1, paragraph B before proceeding with the discontinuance process, to allow abutting property owners the opportunity to grant private easements that run with the title of the property owners' land for the purpose of allowing travel along the way for all abutting property owners and their lessees and guests. [PL 2017, c. 345, §2 (NEW).]
B. After the one-year waiting period required in paragraph A, the municipal officers may:
(1) Proceed with the discontinuance process pursuant to this section, as long as a public easement is retained; or
(2) If the municipal officers verify that private easements that run with the title of the property owners' land for the purpose of allowing travel along the way for all abutting property owners and their lessees and guests have been filed with the registry of deeds, proceed with the discontinuance process without retaining a public easement. [PL 2017, c. 345, §2 (NEW).]
[PL 2017, c. 345, §2 (NEW).]
2. Municipal officers meet to discuss proposed discontinuance and file order of discontinuance. The municipal officers shall discuss a proposed discontinuance of a town way or public easement at a public meeting and file an order of discontinuance with the municipal clerk that specifies:
A. The location of the town way or public easement; [PL 2015, c. 464, §5 (NEW).]
B. The names of abutting property owners; [PL 2015, c. 464, §5 (NEW).]
B-1. The location of any bridge, as defined in section 562, subsection 2, on the town way or public easement and the status of negotiations with the department with respect to the disposition of the bridge pursuant to section 566, subsection 3-A; [PL 2017, c. 154, §3 (NEW).]
C. The amount of damages, if any, determined by the municipal officers to be paid to each abutting property owner; and [PL 2015, c. 464, §5 (NEW).]
D. Whether or not a public easement is retained. [PL 2015, c. 464, §5 (NEW).]
If a proposal includes the discontinuance of a public easement, that must be stated explicitly in the order of discontinuance; otherwise, the public easement is retained. If a public easement is retained, all other interests of the municipality in the discontinued way, if any, pass to abutting property owners to the center of the way. If a public easement is not retained, all interests of the municipality in the discontinued way pass to abutting property owners to the center of the way.
[PL 2017, c. 154, §3 (AMD).]
3. Public hearing. The municipal officers shall hold a public hearing on the order of discontinuance of a town way or public easement filed pursuant to subsection 2.
[PL 2015, c. 464, §5 (NEW).]
4. Approval of order of discontinuance and damage awards. The municipal legislative body must vote upon the order of discontinuance submitted to it:
A. To approve the order of discontinuance and the damage awards and to appropriate the money to pay the damages; or [PL 2015, c. 464, §5 (NEW).]
B. To disapprove the order of discontinuance. [PL 2015, c. 464, §5 (NEW).]
The vote required by this subsection must be conducted 10 or more business days after the public hearing pursuant to subsection 3, except that, for a town way that is not discontinued as of October 1, 2018, in a municipality in which the municipal legislative body is the town meeting, the vote must be conducted at the next regularly scheduled annual town meeting.
[PL 2017, c. 345, §3 (AMD).]
5. Certificate of discontinuance filed. The municipal clerk shall record an attested certificate of discontinuance after a vote by the municipal legislative body under subsection 4 in the registry of deeds. The certificate must describe the town way or public easement and the final action by the municipal legislative body. The date the certificate is filed is the date the town way or public easement is discontinued. The registry of deeds shall record a certificate of discontinuance under the name of the town way or public easement, the name of the municipality and the names of the abutting property owners. The municipal clerk shall provide a photocopy of the certificate to the Department of Transportation, Bureau of Maintenance and Operations.
[PL 2015, c. 464, §5 (NEW).]
6. Utility easement. An easement for public utility facilities necessary to provide or maintain service remains in a discontinued town way regardless of whether a public easement is retained. Upon approval by a municipal legislative body of an order to discontinue a town way and retain a public easement, unless otherwise stated in the order, all remaining interests of the municipality, if any, pass to the abutting property owners in fee simple to the center of the way.
[PL 2015, c. 464, §5 (NEW).]
SECTION HISTORY
PL 2015, c. 464, §5 (NEW). PL 2017, c. 154, §3 (AMD). PL 2017, c. 345, §§1-3 (AMD).
§3024. Recording of proceedings
No taking of property or interests therein by a municipality, or the discontinuance of a town way except by abandonment, after September 12, 1959, shall be valid against owners of record or abutting landowners who have not received actual notice, unless there is recorded in the registry of deeds for the county where the land lies either a deed, or a certificate attested by the municipal clerk, describing the property and stating the final action of the municipality with respect to it. [1975, c. 711, §8(NEW).]
SECTION HISTORY
1975, c. 711, §8 (NEW).
§3029. Damages; appeal
Damages shall be determined using the methods in sections 154 through 154E, as far as practicable, except that references to the "commission" or the "board" shall mean the "municipal officers" and references to the "state" shall mean the "municipality." [1977, c. 479, §5 (AMD).]
Any person aggrieved by the determination of the damages awarded to owners of property or interests therein under this chapter may, within 60 days after the day of taking, appeal to the Superior Court in the county where the property lies. The court shall determine damages by a verdict of its jury or, if all parties agree, by the court without a jury or by a referee or referees and shall render judgment for just compensation, with interest where such is due, and for costs in favor of the party entitled thereto. [1975, c. 711, §8 (NEW).]
Any person aggrieved by the action or nonaction of municipal officers or the municipal legislative body in proceedings under this chapter, other than a determination of damages, may appeal to the Superior Court in the county where the property lies, pursuant to Rule 80B of the Rules of Civil Procedure. [1975, c. 711, §8 (NEW).]
SECTION HISTORY
1975, c. 711, §8 (NEW). 1977, c. 479, §5 (AMD).
PRIOR TO THE PASSAGE OF SECTION 3026-A in the year 2015, discontinuances were governed by the following:
23 MRSA§3026. Discontinuance of town ways (Repealed and replaced by 3026-A)
1. General procedures. A municipality may terminate in whole or in part any interests held by it for highway purposes. A municipality may discontinue a town way or public easement after the municipal officers have given best practicable notice to all abutting property owners and the municipal planning board or office and have filed an order of discontinuance with the municipal clerk that specifies the location of the way, the names of abutting property owners and the amount of damages, if any, determined by the municipal officers to be paid to each abutter.
Upon approval of the discontinuance order by the legislative body, and unless otherwise stated in the order, a public easement shall, in the case of town ways, be retained and all remaining interests of the municipality shall pass to the abutting property owners to the center of the way. For purposes of this section, the words"public easement" shall include, without limitation, an easement for public utility facilities necessary to provide service.
[ 1981, c. 683, §1 (NEW) .]
2. Definition of best practicable notice. "Best practicable notice" means, at minimum, the mailing by the United States Postal Service, postage prepaid, first class, of notice to abutting property owners whose addresses appear in the assessment records of the municipality.
[ 1981, c. 683, §1 (NEW) .]
SECTION HISTORY
1975, c. 711, §8 (NEW). 1977, c. 301, §1 (AMD). 1981, c. 683, §1 (RPR).
THE ORIGINAL VERSION OF SECTION 3026-A, which replaced section 3026 in 2015 and which was then amended in 2017, was as follows:
§3026-A. Discontinuance of town ways
1. General procedures. A municipality may terminate in whole or in part any interests held by it for highway purposes. A municipality may discontinue a town way or public easement after the municipal officers have given best practicable notice to all abutting property owners and the municipal planning board or office and have filed an order of discontinuance with the municipal clerk that specifies the location of the way, the names of abutting property owners and the amount of damages, if any, determined by the municipal officers to be paid to each abutter.
Upon approval of the discontinuance order by the legislative body, and unless otherwise stated in the order, a public easement shall, in the case of town ways, be retained and all remaining interests of the municipality shall pass to the abutting property owners to the center of the way. For purposes of this section, the words"public easement" shall include, without limitation, an easement for public utility facilities necessary to provide service.
[ 1981, c. 683, §1 (NEW) .]
2. Definition of best practicable notice. "Best practicable notice" means, at minimum, the mailing by the United States Postal Service, postage prepaid, first class, of notice to abutting property owners whose addresses appear in the assessment records of the municipality.
[ 1981, c. 683, §1 (NEW) .]
SECTION HISTORY
1975, c. 711, §8 (NEW). 1977, c. 301, §1 (AMD). 1981, c. 683, §1 (RPR).
THE ORIGINAL VERSION OF SECTION 3026-A, which replaced section 3026 in 2015 and which was then amended in 2017, was as follows:
§3026-A. Discontinuance of town ways
A municipality may terminate in whole or in part any interests held by it for highway purposes. A municipality discontinuing a town way or public easement in this State must meet the following requirements. [2015, c. 464, §5 (NEW).]
1. Notification of discontinuance to abutting property owners. The municipal officers shall give best practicable notice to all abutting property owners of a proposed discontinuance of a town way or public easement. As used in this subsection, "best practicable notice" means, at minimum, the mailing by the United States Postal Service, postage prepaid, first class, of notice to abutting property owners whose addresses appear in the assessment records of the municipality.
[ 2015, c. 464, §5 (NEW) .]
2. Municipal officers meet to discuss proposed discontinuance and file order of discontinuance. The municipal officers shall discuss a proposed discontinuance of a town way or public easement at a public meeting and file an order of discontinuance with the municipal clerk that specifies:
A. The location of the town way or public easement; [2015, c. 464, §5 (NEW).]
B. The names of abutting property owners; [2015, c. 464, §5 (NEW).]
C. The amount of damages, if any, determined by the municipal officers to be paid to each abutting property owner; and [2015, c. 464, §5 (NEW).]
D. Whether or not a public easement is retained. [2015, c. 464, §5 (NEW).]
If a proposal includes the discontinuance of a public easement, that must be stated explicitly in the order of discontinuance; otherwise, the public easement is retained. If a public easement is retained, all other interests of the municipality in the discontinued way, if any, pass to abutting property owners to the center of the way. If a public easement is not retained, all interests of the municipality in the discontinued way pass to abutting property owners to the center of the way.
[ 2015, c. 464, §5 (NEW) .]
3. Public hearing. The municipal officers shall hold a public hearing on the order of discontinuance of a town way or public easement filed pursuant to subsection 2.
[ 2015, c. 464, §5 (NEW) .]
4. Approval of order of discontinuance and damage awards. Ten or more business days after the public hearing pursuant to subsection 3, the municipal legislative body must vote upon the order of discontinuance submitted to it:
A. To approve the order of discontinuance and the damage awards and to appropriate the money to pay the damages; or [2015, c. 464, §5 (NEW).]
B. To disapprove the order of discontinuance. [2015, c. 464, §5 (NEW).]
[ 2015, c. 464, §5 (NEW) .]
5. Certificate of discontinuance filed. The municipal clerk shall record an attested certificate of discontinuance after a vote by the municipal legislative body under subsection 4 in the registry of deeds. The certificate must describe the town way or public easement and the final action by the municipal legislative body. The date the certificate is filed is the date the town way or public easement is discontinued. The registry of deeds shall record a certificate of discontinuance under the name of the town way or public easement, the name of the municipality and the names of the abutting property owners. The municipal clerk shall provide a photocopy of the certificate to the Department of Transportation, Bureau of Maintenance and Operations.
[ 2015, c. 464, §5 (NEW) .]
6. Utility easement. An easement for public utility facilities necessary to provide or maintain service remains in a discontinued town way regardless of whether a public easement is retained. Upon approval by a municipal legislative body of an order to discontinue a town way and retain a public easement, unless otherwise stated in the order, all remaining interests of the municipality, if any, pass to the abutting property owners in fee simple to the center of the way.
[ 2015, c. 464, §5 (NEW) .]
SECTION HISTORY
2015, c. 464, §5 (NEW).
New vineyard does what they want they do not follow the law check the town records and you'll see
ReplyDeleteA lot of towns have not followed the law regarding discontinuance. In the past, this was often blamed on the fact that the law was confusing and hard to follow. That was the reasoning behind repealing section 3026 last year (2016) and replacing it with 3026-A. The new law is intended to spell out the procedure so clearly that towns will now have little excuse for getting it wrong. But chances are, some towns will continue to mess it up, perhaps not even being aware that the law has changed. I'd suggest printing it out and handing it to them.
ReplyDeleteI spoke with you a few years back from down cornish way. In 2009 my neighbor and I cabled of the road that runs parallel with our property due the damage of traffic in mud season, two days later the lead selectmen came up and ordered the cable to be removed citing " it's a town way and cannot be barred" we agreed with him and took it down. My building permits were issued upon this road being my required frontage of which I have two more legal lots upon. I asked to have a letter of determination as to the status of the road from the select board at that time, it took two and a half months but I got it. Fast forward to 2016, I contacted the town for maintenance on the road before the road fronting my property and was told that the town is seeking a discontinuance through 3028. I participated initially with the town 2of the 3 selectmen at the time hadn't even read the statutes, the lead couldn'tt cite what statute was being used, this was being pushed through to beat the 29july16 enactment of the revised statute, they proceeded with the discontinuance and issued their decision 27july16. This effectively left an 8 foot easement to our property as well as the second home off our driveway. The evidence if one could call it that, that was provided to their partners in crime MMA was weak scant and full of conjecture, the one vital piece of evidence they didn't bring forth was the minutes from the 23sept09 selectmens meeting that was motioned and approved responding to my request as to the status of the road which states " presumed discontinued to maintenance" but, still a Town Way. That but is a big BUTT and it's about to get kicked good and hard ! I have recently engaged back with the town requesting the 900 feet that runs my line be maintained, citing 3651 and followed citing 3652 in they don't comply. I've pointed out to them that the decision by the selectmen in 2009 is binding on all persons and the boards decision is a quasi judicial decision only a court can make a final decision so their action in 2016 was umm. Illegal can you say U.S. constitution, 5th and 14th amendment... The lead selectmen said there appears to be a conflict with the discontinuance....yeah ya think ? Can you say Frustaci vs. South Portland... Thank you for all you do here ! Remember you may lose a battle and win the war, stick with it many of these decisions can be attacked from different angles. Regards, Joe
ReplyDeleteIf the town refuses to repair the road and you do end up using 23 MRSA 3652 to appeal to the County Commissioners, the Town is likely to claim that the road is abandoned under 23 MRSA 3028 and therefore is out of the County's jurisdiction. You need to be ready to point out that the road doesn't qualify for abandonment. Section 3028 says, "A presumption of abandonment may be rebutted by evidence that manifests a clear intent by the municipality or county and the public to consider or use the way as if it were a public way." You need to make sure the County Commissioners are aware of that wording, and then produce every bit of evidence you can that shows the town considered it a public way up until they claimed it abandoned in 2016. That is, present your building permits, document their 2009 actions, and also point out that the reason you had put up the gate that the town ordered taken down was that the public was in fact using the road as if it were a public way. If the reason the road now needs maintenance is at least in part due to public use, that's also important. The hard part will be getting the County to even look at your evidence, because as soon as the town says it's abandoned, the County may say it's out of their hands and can only be decided through a declaratory judgment action in court. That's one of the reasons section 3028 is so wrong. The Court has so far said that it doesn't violate the Constitution because it only confirms the status quo - that is, no one has needed the road for 30 years, and the public hasn't maintained it for 30 years, so no one is harmed by declaring it abandoned. Since no one is damaged, no due process is required. The trouble is, in the absence of any requirement for notice, hearing, or appeal, a Town can claim a road abandoned in spite of heaps of evidence to the contrary, and there is no place to review the evidence short of a declaratory judgment - which few people can afford. So there are cases where someone really is damaged because the claim of abandonment is faulty, yet they get no due process. One thing you could try is to point out to the Town that the abandonment was improper and won't hold up in Court, and ask if they wouldn't prefer to save the expense of defending themselves in a losing case by just correcting it now. One thing I don't quite understand about what you say is that you are left with only an 8 foot easement. If they're claiming the road is abandoned under section 3028, that makes it a "public easement," which gives the public an "unfettered right of access" by motor vehicle (23 MRSA 3021 and Fayette v Manter, footnote 1.) What restricts it to 8 feet? By the way, there is a bill before the legislature this session that would repeal section 3028. They were going to hold it over until next session, but now they are looking at setting up a study group to work on it over the summer. It would be great if you could send your story to the State and Local Government Committee, telling them how your town has claimed the road abandoned in spite of all the evidence to the contrary. This is one of the arguments we've been using to try to get them to repeal 3028. If they hear of another case of abuse of this law, maybe it will help convince them that it's not just an isolated case or two. You can read the written testimony that was submitted on this bill here: http://www.mainelegislature.org/legis/bills/display_ps.asp?ld=1415&PID=1456&snum=129&sec3# If you submit your testimony now by sending it to the committee clerk, the members of the committee should still get it, but it won't be published on the website. The address to send it to is Dylan.Sinclair@legislature.maine.gov
DeleteGood luck, and Keep me posted!