Although the Maine laws regarding abandoned and discontinued roads often leave residents and land owners with little remedy, in some cases there are solutions you can try. Below are some of the problems that arise on Maine roads, along with possible solutions. Be sure to scan all the way down, as there are a number of possibilities. LOOK BELOW FOR HEADINGS THAT ARE IN ALL CAPS, UNDERLINED AND BOLDFACE.
DISCLAIMER! I am not an attorney and cannot give legal advice or interpret law. Anything you read here is just my opinion, and you should take it as such. Do your own research and check the laws yourself, making sure to also check the "pocket parts" for any updates in the law, as these may change without notice.
SHOULD I HIRE AN ATTORNEY?
Someone told me recently that hiring an attorney for small problems is like watering small plants: they just get bigger.
In our experience, when two parties hire attorneys to fight each other, usually both parties lose and both attorneys win. There are situations where you need to hire a good attorney (do your research to find out both their integrity and their experience with the subject matter), but first do everything you can to try to reach an amicable solution. If you can't do this on your own, a professional mediator can often work wonders. They are trained in how to get diverse interests to find common ground.
THERE ARE SEVERAL LAND OWNERS SHARING THE USE OF THE ROAD I LIVE ON, BUT THEY DON'T ALL CONTRIBUTE TO MAINTENANCE. THOSE OF US WHO DO PAY ARE GETTING TIRED OF BEARING THE WHOLE BURDEN. WHAT CAN WE DO?
Your best bet may be to form a road association. This can be "informal," (what you and the others who pay probably have now,) or you can file with the State as a non-profit. But if you want it to be enforceable, probably your best bet is to form a "statutory road association." As long as there are four or more parcels of land that are benefited by the road, the owners of any three of them can send out notices to all the others, and call a meeting to form the association. Follow the instructions in 23 MRSA 3101 through 3104 carefully, making sure you do everything according to the book, as leaving out any critical step can make it unenforceable. For more help in going through the process, get in touch with MARA, the Maine Alliance for Road Associations.
The Maine laws that apply are found in 23 MRSA sections 3101 and following.
CAN WE FORM A ROAD ASSOCIATION ON A PUBLIC EASEMENT?
The short answer is yes. Under 23 MRSA sections 3101, subsection 2, you can form a road association on a "private way;" and in subsection 1 A, a private way is defined as a public easement. So as long as four or more persons are benefited by the way and any three of them can agree to form a road association, sections 3101 through 3104 apply.
On the other hand, there have been disputes over whether this ought to be. A number of years ago, Maine Municipal Association (MMA) advised in their Roads Manual that Towns had no obligation to maintain public easements, and that it appeared owners of abutting land had no right to maintain them. In 2013, an amendment to section 3101 subsection 1A allowed road associations to be formed on public easements. There were also concerns over who would be liable if a member of the public used the road and suffered injury or property damage due to the condition of the road. The 2013 amendment also added a clause to subsection 5 of section 3101, allowing road association funds to be used to purchase liability insurance.
There remains the question of whether it is ethical to require that abutters on a public easement bear the cost of keeping a road in repair for the public to use, when the abutters have no control over how the public uses the road. Some relief may be provided under Title 17 section 3853-D, which deals with damage to a public easement.
THE PUBLIC EASEMENT THAT I DEPEND ON FOR ACCESS WAS DAMAGED DUE TO USE BY ATV'S AND MOTOR VEHICLES. WHAT REMEDY DO I HAVE?
A fairly new law offers some hope in this situation. Title 17 section 3853-D makes it a Class E crime to damage a public easement with a motor vehicle, including an ATV. It remains to be seen whether this law is enforceable. First there is the problem of trying to catch the person who did the damage, since often they come and go when no one is around to see them. If it's a recurring problem, trail cameras may help catch them in the act. There are exemptions for landowners, but it's unclear whether this gives immunity to someone using the whole road to access his property, or only gives him immunity over the portion of road that abuts his land. It will be interesting to see how this will play out in cases where a logging operation and a resident share a road. Will a logger be granted immunity if his use destroys a resident's access?
The Maine law that applies is 17 MRSA section 3853-D.
A new law, 23 MRSA section 3029-A, was passed in 2016. It creates a "cause of action," allowing owners of land abutting a public easement to file suit against a person who damages a public easement, and recover damages. The law also specifies that the prevailing party may recover costs and attorney fees. Unfortunately, the law does not mandate the recovery of costs and attorney fees. And there remains the question of whether the person who did the damage can be caught.
CAN I GET THE TOWN TO FIX MY ROAD? AS FAR AS I KNOW IT HAS NOT BEEN DISCONTINUED, BUT IT'S IN TERRIBLE SHAPE.
If it's still a public road and not discontinued, the answer may be yes. You can use 23 MRSA sections 3651 and following. Basically it involves sending written notice to one of the municipal officers of the Town that the road is "unsafe and inconvenient" for travel. If the Town does not respond within five days, you then get "any 3 or more responsible persons" to petition the County Commissioners (sections 3652 and 3653.) The Commissioners will view the road and hold a hearing, and if they agree that the road is in need of repair and that the Town is responsible, they will order the Town to make the necessary repairs. If the Town does not repair the road, the Commissioners may hire someone else to make the repairs and send the bill to the Town (section 3654.)
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| Entering the paved Richmond Mill Road (crosswise in foreground) from Young Road (straight behind car.) This entry used to be so steep you couldn't see approaching traffic over the nose of your vehicle. The Town refused to fix it because the Young Road is a public easement. But the County Commissioners agreed with us that the ENTRY to the Young Road lies within the right-of-way bounds of the Town road, and that the angle of entry made it unsafe. We successfully used sections 3651 and following to force the Town to raise the grade and create a level "landing" within the bounds of Richmond Mill Road. |
If there has been a relatively short period of neglect, or if there are rumblings that the Town may be considering discontinuance of the road under 23 MRSA section 3026, then by all means give this remedy a try, and the sooner the better. The Maine laws that apply are found in 23 MRSA section 3651 and following.
IF I DAMAGE MY VEHICLE DUE TO THE CONDITION OF A ROAD, CAN I GET COMPENSATED FOR THE DAMAGE?
If the road is still a town road and not discontinued, you may be able to recover damages from the town, but ONLY IF THE TOWN HAD NOTICE OF THE DEFECT AT LEAST 24 HOURS BEFORE THE INJURY OCCURRED. Read the law carefully, and pay close attention to the notice requirements - who, how, and when.
The Maine laws that apply are 23 MRSA sections 3655 and 3656, on the lower half of the page on Defective Public Roads.
CAN I GET THE TOWN TO FIX A PRIVATE ROAD OR A PUBLIC EASEMENT?
This is a situation where one word can make a big difference. A "private road" is a road that is privately owned and maintained. A Town cannot provide maintenance or snow removal on private roads due to liability issues. But a "private way" is defined as public easement, and as such, the town can operate its equipment on private ways. The catch is, they are not obligated to do so.
Towns vary widely in their response to this situation. Some towns have illegally plowed and/or provided some level of maintenance on private roads for years, and are just beginning to have second thoughts about the policy. Some have gotten around the issue by taking steps to accept these roads as public easements. Other towns have discovered their mistake and dropped private roads like a hot potato, leaving residents to their own defenses. (This is particularly distressing when the discovery is made in the middle of winter, and the town suddenly stops providing snow removal.)
It's a different story for roads that have already been designated public easements, likely after the formal discontinuance or abandonment of the road. In this case, the answer is that towns can provide maintenance but there is no way to compel them to do so. The first step is to try to get an article on the annual town warrant to see if the people will vote to allow the use of town equipment on private ways pursuant to 23 MRSA section 3105-A. (Note also the definition of private way in section 3101.) But even if you succeed in getting that article on the warrant, and even if the people vote in favor of the article, there is still no guarantee that the Town will actually do anything. You may need a second article that specifically directs the Town to take a certain action with regard to your road. You would probably do well to keep your demands as minimal and as specific as possible. People don't like seeing their taxes go up, so they are unlikely to vote for anything that looks as if it could cost a substantial amount. On the other hand, they may be more than willing to give a small amount of assistance to someone who has been a faithful town servant for years. It's really hard to predict what the outcome will be - all you can do is try it.
There is also a provision (23 MRSA section 3106) that may get the town to provide some assistance IF runoff from the road is impacting a Great Pond which has been designated "at risk."
The Maine laws that apply are 23 MRSA sections 3105-A and 3106, near the bottom of the page on Road Associations.
THE SELECTMEN OF MY TOWN HAVE DECLARED MY ROAD ABANDONED, BUT I DISAGREE. IS THERE ANYTHING I CAN DO TO REVERSE THEIR DECISION?
The law that governs abandonment in Maine is 23 MRSA section 3028. In order for a road to qualify for abandonment, it must not have been kept passable for the use of motor vehicles at public expense for 30 or more consecutive years. ("Isolated acts of maintenance" don't count, whatever that means.) Section 3028 states that 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." (Recreational use, as for hunting, doesn't count.) If you think you can gather enough evidence to prove the road is not abandoned, you can ask the Selectmen to reconsider. Most towns will refuse because they know your only recourse is to go to court for a declaratory judgment, and that's likely to cost you from $60,000 to $100,000. A Declaratory Judgment is the only method of relief offered under section 3028.
The Maine law that applies is 23 MRSA section 3028.
NOTE: Common law abandonment: There is no statute for common law abandonment. According to case law, a way can be abandoned by common law if it has not been used for twenty or more consecutive years. The property then reverts to the owners of abutting land to the center of the way, and the right of way is extinguished. There is disagreement over whether common law abandonment can still be applied to a town or county way now that section 3028 is available. See my rather lengthy analysis of the conflict between statutory and common law abandonment on the Abandoned Rd page.
There IS a law (23 MRSA section 3105-A) that allows a town to vote to allow use of town equipment on "private ways" to provide emergency access. The terminology gets a bit confusing here. Many people think a private way is the same as a private road, that is, a road that is privately owned and maintained, and over which the owner(s) can restrict access. But section 3101 defines a private way as a public easement, that is, a road that is open to public traffic but for which the public bears no responsibility.
Whether or not section 3105-A will work for you depends largely on what town you live in. Some towns take the compassionate view, that if there is a resident on a road, they should keep the road plowed, even if it is a true private road. Other towns worry about the liability of using town equipment on private roads. Some towns have gotten around this by voting to accept public easements over private roads. Still other towns argue that they are not obligated to plow or repair public easements.
Our town once voted to authorize the use of town equipment on private ways under section 3105-A, then refused to plow the road unless there was an actual emergency. But if there were an actual emergency it would not be necessary to get a town vote before town equipment could use the road; the emergency gives them that right, so the law must mean something else. It seems it would be logical to conclude the intent of the law was to keep the road passable so that it would be ready to be used in case of emergency.
We have been told that if there is a fire or medical emergency at our house when the road is buried under two feet of snow, the plow truck will be there right in front of the emergency vehicles. But when was the last time a plow truck went flying past you with its lights flashing and its siren blaring, or when was the last time you got stuck behind a slow-moving ambulance on its way to help a heart attack victim? Still, it may be worth asking your town to put an article on the warrant in accordance with section 3105-A and see how they react.
The applicable Maine law is 23 MRSA section 3105-A, found near the bottom of the page on Road Associations.
CAN I GET THE TOWN TO POST THE ROAD TO RESTRICT HEAVY LOADS?
Town have the authority under Title 29-A section 2395 to post roads "Heavy Loads Limited." The familiar notice of posted roads often appears in late winter, as the disappearance of frost from under roads leaves them prone to damage from heavy trucks. Towns do have the authority to post roads to restrict weights, and theoretically they can do so on public easements. But the Maine Supreme Court has declared that the public has an "unfettered right of access" over public easements. In theory, that should mean that no restrictions can be placed on them, although that makes little sense in light of the condition of these roads. So whether or not the town will post a public easement for you may depend on how good your rapport is with town officials, as well as whether they are friends with someone who is in the middle of a woods harvesting operation.
On the other hand, it may not be necessary for them to actually post the public easement, as long as that easement can only be accessed over another road that is posted. Unfortunately, your road may not thaw as quickly as other roads in town, especially if it's narrow and shaded by overhanging trees. It's possible the posting on wider, sunnier roads will be lifted before your road has finished settling.
Another problem with this remedy is enforcement. We have found that trucks are routinely allowed to use a road as long as the temperature is below freezing. But if the temperature has been above freezing the previous day, merely dipping below freezing for a few hours may not be enough to really freeze the road solid again. A heavy truck may not actually leave tire tracks in the surface under these conditions, but it may compress the underlying soil, causing a depression that will keep water running down the road, leading to erosion. We have also found that unless law enforcement responds quickly enough to catch them in the act of causing obvious damage, they may not take any action.
The Maine law that applies is 29-A MRSA section 2395.
On the other hand, it may not be necessary for them to actually post the public easement, as long as that easement can only be accessed over another road that is posted. Unfortunately, your road may not thaw as quickly as other roads in town, especially if it's narrow and shaded by overhanging trees. It's possible the posting on wider, sunnier roads will be lifted before your road has finished settling.
Another problem with this remedy is enforcement. We have found that trucks are routinely allowed to use a road as long as the temperature is below freezing. But if the temperature has been above freezing the previous day, merely dipping below freezing for a few hours may not be enough to really freeze the road solid again. A heavy truck may not actually leave tire tracks in the surface under these conditions, but it may compress the underlying soil, causing a depression that will keep water running down the road, leading to erosion. We have also found that unless law enforcement responds quickly enough to catch them in the act of causing obvious damage, they may not take any action.
The Maine law that applies is 29-A MRSA section 2395.
OTHER PEOPLE ARE USING THIS DISCONTINUED ROAD INDISCRIMINATELY AND ARE CAUSING DAMAGE. CAN I PUT UP A GATE?
This is where the date and manner of discontinuance become critical. You will first have to determine who actually owns the right of way and/or has a right to use it, whether through public rights or by deed. If the road was abandoned by common law, or was a town road that was discontinued by statute prior to 1965, or was a county road discontinued before 1976, most likely it became private property and the answer is a tentative "yes." But there are exceptions (the road we live on being one of them.) If the road was a town road that was discontinued by statute after 1965, or a county way that was not discontinued until 1976, when all county ways became town ways, or if it was abandoned after 1976 pursuant to 23 MRSA section 3028, then most likely it remains a public easement. In that case, if you put up a gate you could be found guilty of Obstructing a Public Way, 17-A MRSA section 505. That's a class E crime, punishable by up to six months in jail and up to $1,000 fine. Again, there are exceptions. When a road is discontinued pursuant to section 3026, a town may vote to extinguish the public easement as well, in which case the land reverts to private property. On the other hand, there are cases where private access rights exist due to a back lot having been split off from a front lot that had access. This really is a question that has to be answered on a case by case basis. You also need to consider the opposing point of view, because...
Then there is the opposing question -
SOMEONE HAS PUT UP A GATE ACROSS THE DISCONTINUED ROAD, BLOCKING MY ACCESS. WHAT CAN I DO?
First, read the answer to the previous question.
After reading that answer, whether you think the gate is legal or not, you would be wise to first try to determine who put up the gate and why. If you approach them with tact, and with assurances that you will use the road in a responsible manner and not change its character, perhaps you can convince them to allow you access, even if it means issuing you a key so that others can still be kept out. If they refuse, and if you are convinced the gate is illegal, you can try calling the Town and see what their view is. If they refuse to remove the gate (and can't give you a satisfactory reason,) you can try calling the police. Make sure you have a copy of 17-A MRSA section 505 in hand to show them. They may tell you "It's a civil matter, you'll have to take it to court," and refuse to do anything. Here's where it gets dicey. Going to court can get frightfully expensive. As one person told me, "Hiring attorneys to address small problems is like watering small plants; they just get bigger."
On the other hand I CAN'T CAUTION YOU ENOUGH -DON'T TRY TO TAKE MATTERS INTO YOUR OWN HANDS!!!!! Cases like this have been known to result in people getting arrested for trespassing, getting shot at, being threatened with a medieval style ax, or getting beaten to a pulp. Jail time and monetary fines are also a distinct possibility.
THE LAWS CONCERNING ABANDONED AND DISCONTINUED ROADS APPEAR TO BE CAUSING A LOT OF CONFUSION AND CONFLICT. WHAT CAN BE DONE TO CHANGE THE LAWS?
Get involved with the legislative process. For years, Maine ROADWays and MARA (Maine Alliance for Road Associations) have been working with SWOAM (Small Woodland Owners' Association of Maine) to try to get legislative reform, and together we are finally beginning to make small progress. The effort has slowly gained momentum as we have found allies among realtors, Registers of Deeds, surveyors, Soil and Water Conservation Districts, Lake Associations, sportsmen, and more and more land owners facing problems with these roads. Our hope is that if we get enough voices joining together, we can get the legislature to sit up and take notice. In 2015, the legislature enacted an amendment to 17 MRSA section 3853-D, making it a class E crime to damage a public easement. In 2016 they repealed 23 MRSA section 3026 (town road discontinuance) and replaced it with section 3026-A, in the hope of eliminating some of the confusion about the process. For more detail, go to the page on Discontinued roads.
(c) Roberta Manter 2016
Ive just come across this page, and maybe you are the first person that might actually have an answer.
ReplyDeletebackstory..
I'm trying to buy a house on what has turned out to be a discontinued road. I've done research and found document from 1951 for when this happened. In said registry paperwork, there is no mention of a "right of way" or "easement". The document only states that the road "will be continued for convenience in the turning of vehicles"
This has caused quite the uproar in town hall, seeing as there are currently 10 houses on this road now.
I'm at a loss... any advice or tips you might have would be greatly appreciated.
The road in question is Boggy Brook Road. Ellsworth 04605
thank you
aka1of3stooges@yahoo.com
Welcome to Maine ROADWays! I can see your road and the ten houses on Google Earth. It appears the first part of the road is paved, but the pavement stops before the houses begin. Does the Town maintain any of the road, and if so, to what point? It also appears there is a utility line running along the road. Is that correct? County records show that this was once a county road, and that it was discontinued by the county in 1951, as you said. The wording you quote from the discontinuance is certainly unusual. I will want to see the entire discontinuance order to see if there are any other clues. I can get it from my contact at the DOT. If you'd like to continue this conversation with more privacy, you can email me at roadways@juno.com and send me more detail about what's going on. Are you trying to get the town to maintain the road and they are refusing, or have they been maintaining it and now are finding out they shouldn't? Did the town grant building permits for those houses? I'd also be curious to know from whom (and when) the utility company got its easement. Hope to hear more from you.
DeleteI bought a camp which is year round so I live in it. It's at end of a private road. I have easement or right away as road ends at my property. The neighbors who just bought house next door park in front of their house which is in the road.i struggle to get around their large SUVs. I had an attorney that was doing work for me.looked at property and said he believed there's supposed to be a 20' right of way or access. I didn't hire him for that so it was just a comment he made. How can I find out my rights. my propane company said it's very hard to deliver. They have a driveway tar pad beside their house but don't use it. They have 3 vehicles.
ReplyDeleteIf it's a private road and you have a deeded easement or right of way, the key would be in what it says in your deed and in your neighbor's deed. If you send me more information in a private email, I'll see what I can find out for you. I would need the names that your deed and your neighbor's deed are registered under, and the county, so I can look them up on your county's Registry of Deeds website. It would also be helpful to know the name and exact location of the road, as well as your map and lot numbers, so I can look it up on Google Earth and on tax maps to get a sense of the relationship of the road to the lots. You can email me with whatever information you can, at roadways@juno.com
DeleteI live on a private road that has become eroded and expensive to maintain. There are only 4 homeowners on the road and the burden is becoming costly to share between us all. Is there a mechanism to turn the road into a public or Town road?
ReplyDeleteYes, there is a process, involving the land owners dedicating the road to the town, and the town's vote to accept the road. Unfortunately, with the rising costs of road maintenance, many towns now have a policy of not accepting roads until they are first brought up to full town standards. Other towns have a policy of not accepting ANY new roads. Even if your town is one of the ones that will accept new roads, if you have the town meeting form of government the acceptance has to go to a vote of the townspeople, and if they think it will raise their taxes, they are likely to vote against it. Even if you have a town council and they assure you they will accept it once it is brought to standard, there is still the risk that a change in council members may occur before you complete the improvements. But there are other possibilities that are worth looking into. If you are having problems with erosion, chances are that runoff is going into the watershed somewhere. If your four landowners form a statutory road association, that might make you eligible for town funding under 23 MRSA 3106 to protect lake water quality. OR, you might be able to get a grant from one of the various organizations that protect lake water quality. If you send me a private email at roadways@juno.com and tell me the exact location of your road so I can find it on Google Earth, I can take a look at it and see if I can make a more specific suggestion. Also, I would highly recommend you sign up for the Maine Alliance for Road Associations (MARA) Zoom Conference next Saturday, Oct 3, 2020. The morning speakers are two of the state's foremost road attorneys, speaking on legal aspects of the formation and operations of road associations. The afternoon speaker is the DEP's expert on maintaining gravel roads to protect water quality. If anyone can tell you what you could do on your budget to improve the situation, he's your man. Here's a link to the MARA Events page where you can sign up for the conference. https://www.maineroads.org/page-1856239 Hope to "see" you there, via zoom, at least! I think you would find it well worthwhile.
DeleteHi Corey, I live on a private road that is shared by eight year-round neighbors. Most of us have waterfront property that allows us access to "great pond." One of the eight property owners has decided to start a bed and breakfast, or perhaps a boarding house, and her paid visitors will be using our private road. Seven of the property owners are against this idea. We don't want the extra traffic on our private road, nor do we want our privacy invaded. Are there any laws that can protect the seven of us against the one who wants to use the road for business. This one particular person is very wealthy and has warned us that we will lose if we oppose her. Should we just give up? Thanks for your insight.
ReplyDeleteUnknown - I think you meant to direct that question to me, not to Corey, who had written in with another question. You certainly have a sticky situation there. My first thought would be that if it's a private road, there might be deed restrictions. Was it a road laid out in a subdivision? I would try looking up each of the deeds in your county's Registry of Deeds website. I would also see if there is a subdivision plan mentioned in any of the deeds. If so, I would then look up the subdivision plan, also at the Registry of Deeds, and see if it contains any restrictions. My next thought would be, do you have a road association, and if so, is it a "Statutory" road association established under 23 MRSA 3101 - 3104? If so, is there anything in your bylaws that would apply? If you do not have a Statutory road association, forming one could give you some options. It probably would not allow you to prohibit a business, but might give you some enforcement powers to get the owner to contribute their share of the cost of maintenance. Your formula for determining each owner's share of the cost must be "fair and equitable." which means that you can't single out one owner and tell them they have to pay more. However, there may be some way of basing the determination on use, that would apply equally to everyone but result in higher dues for higher use. As for the person's threat that you will lose if you oppose her, unfortunately that may be true. Court action can be frightfully expensive. On the other hand, it may just be a bluff to keep you from trying to oppose her. But getting confrontational rarely solves this sort of problem. Things can go sour in a hurry, and escalate. Fortunately, there is an alternative to Court action. Professional mediators are generally much less expensive than court action, and they do an amazing job of getting parties to find an agreement that works for both sides. Do any of the landowners have land in farming or in tree growth? If so, the situation might qualify under the Cooperative Extensions' Agricultural Mediation Program, which operates for nominal fees. That's about the best answer I can give you without knowing more about the situation. If you send me an email at roadways@juno.com and tell me the town, the name of the road, and any other information you can give me, I can research the deeds and see if I can give you a better answer. (I don't charge for my services.)
DeleteHello
ReplyDeleteI live on a private dirt road in Pittsfield. It was part of a larger development from the mid 40's but the developer walked away from the project. Since then, homes have been built and buyers, unaware of the status at time of purchase, now realize it is a private road which the town has no interest in "maintaining". (Realtors have implied town maintenance to many buyers)There are some interesting things about our road and I wonder if you might tell me what your thoughts may be? The road is in varying states of passability...smooth, pot holes and deep ruts. (Think of it as in 3rds) it is connected at both ends to town roads. It is furnished with town water and the sewer system is considered "private" but is connected to the town sewer system. Each homeowner pays the town a water and sewer bill. The Town plows it every winter as well. We would love to explore having the town maintain it via grading ( we had ditches placed appropriately to facilitate water drainage) but the town has been resistant. Have you ever heard of a similar scenario her in Maine?
Wow, that's a really convoluted one! I have several thoughts. First, a law was passed in 2017 (33 MRS section 173, paragraph 6, that requires sellers of real estate to disclose if the access to a residential property is not a public way, and if not, who is responsible for maintenance. So if any homes have been sold since 2017, the seller should have disclosed that information. The fact that the town has water lines and sewer lines there, and that the town plows it, makes me wonder if it is indeed a town way that is just being neglected by the town. If so, there is a process in 23 MRS 3651 and 3652 by which you should be able to get the Town to maintain the road. But if it has never been accepted as a town way, the town should not be providing snow removal. In 1989, the Maine Supreme Court issued an Opinion of the Justices in which it said that maintenance of private roads was not a public purpose, and that it would be unconstitutional to spend public funds to maintain private roads. Since then, Maine Municipal Association has been advising towns not to plow private roads. Some towns have gotten this advice mid-winter and have ceased snow removal immediately, leaving residents scrambling to arrange for a plow contractor. So how do you know if your road is in fact private or public? You may be able to find out by going to the DOT's map viewer site, https://www.maine.gov/mdot/mapviewer/ and typing the name of your town into the search box. Then go to the Layers tab on the right and select "Jurisdiction." Then if you click on your road, a box will appear on the left with information about the road. If it identifies it as a town way, then the town has an obligation to keep it in repair, and you can use section 3651 and 3652 to get the County to compel the town to repair the road. If all it gives you is the name of the road and information about land parcels, or if it says "no features found," then you're probably out of luck as far as town maintenance goes. Most towns will not accept a road unless it is first brought up to town road standard, which is an expensive endeavor, and many towns won't accept any new roads period. In that case your best bet would be to form a statutory road association under 23 MRS 3101 - 3104 so all owners of abutting property share the cost of maintenance. If you send me an email at roadways@juno.com with the exact location and name of the road, I'll see what I can find out about it for you, or I can walk you through the process of appealing to the County or setting up a road association.
DeleteWe live on Morrison Road in Ludlow Maine. Morrison Road was supposedly discontinued in 1985 (selectmen and town voted to discontinue the road per town records) but there was never a certificate of discontinuance submitted to register off deeds and the town continued to take money for road maintenance at least through 1995 (i have a signed letter from DOT proving this). We have tried to get the town to resume maintenance on the road as it was never properly discontinued. They say they do not have to even though I have given them the research on the road. What are my options? I am trying to find out exactly when Morrison road was removed from DOT but have yet been able to figure out how to get those records. The town has continued to issue building permits on the road and it has gone from 1 permanent resident to 3 permanent residents and a working farm in the past few years. It is 1/2 mile of road we with 5 property owners.
ReplyDeleteSounds like you have done your homework! If I understand correctly, the DOT has confirmed that the Town took LRAP funding based on your road's mileage through 1995, but you don't know if they continued to take funding later than that? I can find that out for you. I can already tell you that the DOT currently does not have the road on record as a town maintained road. Just to make sure you understand, LRAP funding can be used on road improvement projects anywhere in the town. It does not have to be used on any particular road; however, the amount of funding a town receives is based on the number of miles of roads the Town reports to the DOT as being maintained year round or seasonally by the town. They are not supposed to claim roads they do not actually maintain in order to collect extra funding, and they are supposed to update the mileage every couple of years. But they often forget to report changes, and the DOT is pretty forgiving about it, since a half mile of road here or there doesn't make a huge difference in the amount of funding. Still, ten years of "forgetting" to report a road, combined with selling building permits, and the increase in permanent residents, all stacks up. You say the road was "supposedly discontinued in 1985." Do you have a copy of both the Warrant Article and the result of the vote on that article? Can you send me a copy? (i.e. take a good clear picture and send it as a JPEG file to my email, roadways@juno.com). Have you tried searching the Registry of Deeds for a certificate of discontinuance, or has the town admitted they never filed one? One thing you could try, although I can't guarantee it would be successful, would be to petition the Town under 23 MRS 3651 to fulfil its obligation to keep the road "safe and convenient for travelers with motor vehicles." They will no doubt say it's no longer their obligation because it has been discontinued. (Or they might try to claim abandonment - I'll address that below.) You then appeal to the County Commissioners, and present them with all your arguments as to why the discontinuance is invalid and the Town should be maintaining the road. If you want to try that route, please send me an email so I can talk you through the process and avoid some of the possible pitfalls.
DeleteIf the Town tries to claim the road is abandoned because they have not maintained it for thirty or more years, they will have to do that under the new abandonment law, 23 MRS 3028-A. (If they claim it was already abandoned under the old 3028, you point out that until you questioned it, their claim was the road was discontinued - which proves they had not already declared it abandoned.) You want to be prepared for the possibility of a claim under 3028-A before you rock the boat. Get really familiar with the law so you can make sure the Town complies with it, and be prepared for the deadlines for asking for a hearing, and for appeal, ahead of time. My guess is that they may try to claim abandonment due to non-maintenance from 1992 to 2022, which makes the date on which LRAP funding ended critical. (If that's why you are asking, good for you for figuring that out!) One of the dangers of abandonment under the new law is that it appears to allow the Selectmen to decide NOT to retain a public easement, even if that would leave properties legally land locked. The law is so new, none of its flaws have yet been tested in Court, to my knowledge. Hopefully the new Commission on Abandoned and Discontinued Roads will address that issue, among others. Another option would be to form a road association to maintain the road - but if the discontinuance is indeed faulty, or if it was valid but retained a public easement, that leaves private individuals maintaining a public road - which we argue is unconstitutional. So another option would be to petition the town to re-do the discontinuance properly under the current discontinuance law, 23 MRS 3026-A. That law now requires the Town to allow the landowners one year in which to try to negotiate a shared PRIVATE easement. (if you want to try this, I would strongly recommend that you discuss it with the other landowners before you mention anything about it to the Town, because if it turns out the other abutters are not willing to do that, you will be stuck with a public easement - which the general public will still have the right to use freely, but the Town will have no obligation to provide any maintenance. But if you can get all the abutters to agree on a private easement, you can then form a road association to share in the maintenance of the road, and you can post it or even gate it to keep the public out. One thing that concerns me is that looking at Google Earth, it looks like the road serves a lot of timber land. Wood harvesting can place a tremendous load on a road. Some loggers are responsible about hauling only when the road is solidly frozen or completely dry, and repairing any damage they do. Others are just interested in getting their wood out and keeping their costs down. Please send me an email at roadways@juno.com with answers to my questions above, and I will get in touch with the DOT about the exact date on the LRAP funding.
DeleteI have an answer for you from the DOT, but would rather not post it here. Please send me an email. I promise I do not sell my email lists, will not flood you with unwanted emails, and I do not charge anything for what I do. So please email me at roadways@juno.com so I can give you the information.
DeleteI live on a private road. One resident who owns just land wants to alter the road across their property so as to have more room to build. Does that require consensus from all homeowners as well as a change to deed with new survey? The land is the next to last property on the road. The last resident has already consented to it.
ReplyDeleteThis is a bit outside of my expertise. Not being an attorney I can't give you a solid answer, but I think the safe thing to do would be to have a survey and a change in the deeds of at least the last two properties. Whether it would require consent of everyone on the road may depend on a number of factors, including how the deeds are written. Do the deeds grant rights over all of the road? Or does each deed grant a right to ingress and egress from each property to the main road? Are there amenities at the end of the road that everyone uses, such as lake access or common land? Who pays for maintenance of the road? Is there a road association? If so, their bylaws might have something that applies. Also, if each member pays dues that help maintain the entire road, I believe that implies a right to use the entire road, (whether or not their deed says so.) They would therefore have an interest in how moving the road might affect the maintenance cost, which would be reflected in their dues. (Trying to calculate dues based on length of road used runs into some very messy calculations, and places an unfair burden on the person farthest in.) You could try joining MARA, (Maine Alliance for Road Associations), which would then allow you to post a question on their forum. Answers are posted by other members, who (again) are not attorneys, but sometimes there is someone who has run into a similar problem who can tell you how they solved it. Membership is only $25 per year, and you do not have to have a road association to join. There are a lot of great resources on their website, maineroads.org. Many of those resources are available to everyone, but membership gets you the ability to post on the forum, an annual newsletter, and a discount on attending their annual conference.
DeleteHello, I would like to build a house on a lot that I own but was told by the town that I will have to do over a hundred thousand dollars worth of improvements to a town owned road before I can build the home on my lot and ultimately get an occupancy permit to live in the house. I have records from the town stating that the road was on the board of selectmen's agenda to talk about abandoning the road in November of 2014 but the board of selectmen decided to keep the road a town road and not to vote on abandoning the road during the meeting. This decision from the board of selectman to not vote on abandonment and to keep this road as a town rd was also posted in the findings of facts and decisions of a planning board meeting for a final subdivision application that would utilize a section of this town road in November of 2014 as well.
ReplyDeleteI was told by the town planner that I would need to hire an engineer to draw up a road improvement plan and submit it to the DPW commissioner for approval before i could start any type of work. After spending thousands of dollars on the engineer and the plan, my engineer and i had a meeting with the DPW commissioner to go over everything in March of 2022. The DWP commissioner informed us at the beginning of this meeting that she was not happy at all to hear from the town legal council and the planning board that the town road in fact had never been discontinued or abandoned. She then stated that she did not want to take care of this road but never the less still went through the meeting reviewing the engineer's proposed road improvement's. She then said that we would have to apply for a road opening permit and provide another plan from the engineer showing where the trees would be cleared within the existing road limits before she could approve the new road improvement plan, which was provided to her within a weeks time. That was 8 months ago and still no approval for the road plan. Now the Road commissioner is saying that she will need to set up a meeting with the head of the planning board to discuss the new road improvements because it is rather complicated, which hopefully will be at the end of next week.
After cheking in to town owned roads and who should repair them, i came across this site and I have to say i was taken back to read about 3651, 3652, 3653 and 3654.
My question is, if i send the letter to the town for road repairs and ultimately to the county for the road repairs, can the town just ultimately decide at that time to discontinue the portion of the road that leads from the subdivision where the road improvements were already completed at the subdivision owners expense to where the road continues to my lot which is about 750 feet?
I just posted about improvements to a town rd but did not mention what condition the town owned rd is so i thought that id post again to give you a little more information.
ReplyDeleteThis road was originally an old road that led to a railroad depot. The railroad depot was moved years ago so even though this road still leads to a railroad owned parcel, it is no longer used by the railroad for access to its now moved depot.
It appears that the road was originally built by clearing trees, filling in low lying areas with gravel, installing a stone bridge over a brook and just using the existing soil itself for the rest of the road that didnt need to be raised up. the small brook that went under the road has changed course over time and has washed out about a 25 foot section of the road that was filled in with gravel, leaving a 10 foot high open ditch that a car would fall into if someone drove down there not knowing that it was washed out.
the town apparently put up orange barriers blocking the entrance from the road at the end of the pavement at the subdivision where the pavement turns to gravel to block vehicle access to the rest of the road.
The distance of the gravel road is approximately 2000 feet from where the pavement ends at the subdivision to the railroad lot at the end of the road.
The DPW says that the new road improvements must be brought up to town road specifications meeting sight distance requirements which would require removing ledge in some areas to bring the elevation of the road down and filling in a low lying area which would require guard rails to be installed after completion. There is also another area in the road where a culvert will need to be installed to eliminate water that is flowing across the road from a low lying ground water run off area.
the existing gravel road has an approximate base of 20 feet in some areas and 14 feet in others, but the town is requiring a 24 foot base with a 20 foot wide finish base.
i can see why the town would not want to do these improvements itself but i am also very frustrated that they also want to keep the road as a town road itself but require landowners to bring the old road up to their new town road specifications.
thanks
My goodness! It always amazes me that a town that feels it cannot afford to repair one of their roads thinks that a private individual can afford to repair it and have it remain a public road. You didn't say where this is. I assume it's in Maine - otherwise Maine's laws would not apply. If you send me an email with the name of the town and the name and/or exact location of the road, I can do a bit of research and tell you more.
DeleteIn answer to your first comment, the short answer is this: if the Town has not done significant maintenance on the road for a period of thirty or more years, if you try to use 23 MRS section 3651 and following to get them to repair it, they will most likely claim it abandoned. Or, if they don't think the road qualifies for abandonment, they will most likely try to discontinue it. But from what you have said, my guess is they would go for abandonment, as then they would not have to compensate the abutting landowners.
Whether they abandon it or discontinue it, the road would most likely remain a "public easement," which would be open to public vehicular traffic but the town would have no obligation to maintain it. One thing I'm curious about - what codes or ordinances does your town have for private roads in subdivisions? Is that what they are using for their specifications for building this road? In some towns, a subdivision is allowed to meet a lesser standard so long as it is clearly stated that the "nonconforming" road will never be accepted as a town way.
If you are just planning to build one house, not put in a subdivision, my next question would be how many other landowners are served by the portion of road they are asking you to rebuild? And what are their plans for their land? Are they just wood lots? Or if you rebuild the road solely at your expense, will they see that as their chance to harvest their wood, and pound your road to death?
Or will they then sell their land for subdivision? If the road were to be discontinued, would the other landowners be interested in forming a road association to pitch in on the expense? Is there any chance the other landowners would all prefer to make it a shared private road and keep the public out? If so, it seems to me the town COULD give it up, and let you build what ever kind of road the landowners want to build, because it would no longer be a town way. See 23 MRS section 3026-A. The big flaw in that law is that after the landowners have all agreed to grant each other a shared private easement, the town can vote not to let go of it. Another potential problem I see is that they could require road frontage in order to issue a building permit, and if they make it no longer a public road, they might then require a certain standard of private road.
It all boils down to the town wanting you to spend money so they can profit off of it. If you convert an undeveloped lot into a residential lot, they can get more from you in taxes, and if they don't have to maintain the road for you to get there, they can spend that money elsewhere in town. Besides, once the road is fixed up, other landowners may build on it, and then the town can collect even more in taxes. And they'll probably assess your property as being on an "improved road," even though it was improved at your expense.
There has already been one Maine Supreme Court case (Jordan v Canton) that said it was unconstitutional to have a public road that is not maintained at public expense. We think that case should apply to cases like yours - but Maine Municipal Association says it only applies to a law that was repealed. It will probably take another lawsuit to prove that the principle applies to any public road that is not maintained at public expense.
Bottom line - you could try section 3651, but look hard at the possible consequences first. Again, send me an email with the town and the location of the road, and I'll see what I can find out about it. roadways@juno.com
I'm in a bit of a pickle... I'm trying to buy land at the end of a "discontinued or abandoned road". Nobody has had luck finding the discontinuance. There are multiple houses on the road beyond the point where the town maintains. There is an incomplete ROW that someone never signed from many years ago, but otherwise it seems like the houses on the end of the road (including the one I'd like to purchase) have no legal access.
ReplyDeleteI drafted an easement I bet I can get the neighbors to sign, but I have no idea if I'm going about this the right way, or what is really needed here. And, I'm running out of time and options to solve the problem.
The road is School St. in Brooks. The discontinued part has also gone by the names "Old County Road" and "Old Thorndike Road" and "Upper School Street". Any ideas on how to move forward with this purchase?
This one is a bit interesting. It doesn't show on the old topo maps on historicaerials.com in 1945, but shows as a double dotted line in 1957, 1965, and 1974. In 1983 it shows as a single dotted line. That would suggest the relatively recent creation of the road, which would suggest a recent (after 1965) discontinuance.
DeleteYou refer to "the discontinued part." Do you have a copy of the discontinuance, or are you just going by people having told you it's discontinued? Have you searched the Warrants in the Annual Town Reports for an Article to discontinue the road? If it was discontinued after Sept 3, 1965, and the discontinuance says nothing about NOT retaining an easement, then an easement would have automatically been retained. If it was discontinued before that date, and said nothing about retaining a "private way," then no easement was retained.
Or, if you have searched and have not located the discontinuance, perhaps it never was accepted as a town way, but was just a private road.
I was hoping that since you said one of its names was "Old County Road" that it had indeed been a county road, and we might find the county discontinuance fairly easily. But the DOT mapviewer site doesn't show it as ever having been a county road. Sometimes the DOT has old records of roads they were unable to locate, but county roads were laid out to lead from one town to another, and this road doesn't seem to have done that. The old maps show it as bending around and wiggling its way over to end at Valley Road, rather than crossing a town line. If you send me an email at roadways@juno.com letting me know how much research you have or have not done, I'll be able to give you a better answer. (Continued)
Meanwhile, I would strongly urge you not to assume you will be able to get the other abutters to agree to signing an easement, and not to buy the property unless you first have assurance from everyone that they are willing to sign. I have seen others buy property on such an assumption, only to have things turn sour after they bought the property. All it takes is one disgruntled property owner to block the road. And if one property owner manages to acquire property on both sides of the road, and the road was indeed discontinued without easement, then he is likely within his rights to put up a gate on each end of his property. Others who need access would then have to go to court to prove that they and/or their predecessors-in-title had used the road without interruption for twenty or more consecutive years without permission of the other landowners, but with their acquiescence. I currently know of three cases where a Title Insurer is having to fight for access. I also know of others who never obtained title insurance, and now are being blocked.
DeleteIf you will send a copy of what you are planning to get signed to my email, roadways@juno.com, I can go over it and make recommendations for wording. (Disclaimer: I am not an attorney, and therefore cannot give legal advice or interpret law. What I say is based on my own 40+ years of experience with these roads - take it or leave it for what it's worth.)
I have a right-of-way that I pay the taxes on and share it with 4 other lots. Another neighbor who is not on the right-of-way per his deed is trying to buy a piece of my neighbors property and thinks that if he does, he will now have rights to the right-of-way. How can this be??
ReplyDeleteRemember, I am not an attorney, so please don't take this as legal advice or interpretation of law. However, I have run into similar situations before, and it seems there are at least four sets of circumstances where this sort of thing can happen. (I'll have to split my answer, as it's too long.)
DeleteFirst, if a person owns an inaccessible back lot and they are able to purchase a lot with frontage on a PUBLIC ROAD, their back lot would then be considered to have access over the front lot by annexation.
Second, if someone owned a large lot that had access, whether from a public road, private road, or private easement, and they divided off a back lot and sold it without providing it with any access, the owner of the back lot would have the right to an "easement by necessity" or "implied easement" because his lot was part of a lot which had had access before it was divided. You cannot create a landlocked parcel and sell it without providing access.
Third, an unusual circumstance can happen with discontinued roads. If someone owned a front lot and a back lot, and the back lot had access over a town or county way at the time he sold it, but the road that went to the back lot was discontinued without easement after he sold it, then the owner of the front lot would have no obligation to provide an easement by necessity because the back lot had access at the time he sold it. But the town or county would be obligated to compensate the owner of the back lot for loss of access when they discontinued the road.
There is a fourth possibility, and if I understand your situation correctly, I believe this one would apply. It's similar to the first scenario, but the access to the front lot is by a deeded right of way. So long as the back lot was not divided off from one of the properties that has the private right of way in its deed, then the back lot would be considered a "stranger to the deed" that has the right of way. There was likely an owner of a large tract of land who divided it to create your lot and the four others, and granted each of those five lots a shared private easement. That owner intended that the easement would be used only by those people to whom he sold that right. If an owner of other land could simply buy one of those lots and thereby gain access to land beyond that original tract of land, there would be no limit to how that road could get used. For example, there could be a neighboring hundred acre lot, and the owner could buy one of the five lots that has the shared easement. He could then subdivide his back lot into little house lots and give them all access over a road that was only intended to provide access to those five lots that were granted the easement originally. Or someone could own a back lot with a gravel pit, wood lot, stone quarry, etc, and by buying one of those five lots he could begin hauling heavy trucks out over the easement. The "stranger to the deed" principle says that if someone creates a private easement to serve a specific parcel or parcels of land, an owner of other land cannot force expansion of that easement to serve other land not included in the original grant of the easement.
DeleteI can see two exceptions. One would be if the back lot had been part of the same parcel from which those other five lots were carved, and it was sold without granting it access, creating a land locked parcel. It would then have a right to an "easement by necessity," as described above.
The other exception I can see would be if the person who created the right of way is the one who is selling the front lot, and that creator's intent is to provide access to the other person's land. I have never run into such a situation, but I suppose the person who created the right of way could, if he wished, expand it to serve someone else's land. It is his choice what he does with his own land. But someone who has purchased the right of way from him cannot expand it to serve someone else.
I do know of one situation where a developer created a small subdivision on PART of his own land, and a road association was set up to maintain the short piece of road that served those few houses. Then the developer bought more back land, subdivided it as well, and connected the road that served it to the original short road. The owners of the original few lots were irate, and a lawsuit ensued. The Court sided with the developer, but I believe the solution that was eventually reached was that the developer built a new road over other land that he owned, and provided at least alternate access via that route instead.