Towns may suspend snow removal for a period of up to ten years under the statutes below.
23 MRSA§2953. Closing of roads in winter
1. Announcement of winter closing of roads. The municipal officers may on their own initiative, or upon petition by 7 legal voters of the municipality, at any time between May 1st and October 1st of any year, set forth that any road or roads, or portion thereof, in the municipality are so located with reference to population, use and travel thereon, that it is unnecessary to keep the road or roads maintained and open for travel during the months of November, December, January, February, March and April or any part of these months.
[ 1981, c. 215, (NEW) .]
2. Notice and hearing. Prior to an announcement under subsection 1, the municipal officers shall hold a hearing on the proposed winter closing of a road or roads or portion thereof. The municipal officers shall place a written notice of the hearing in some conspicuous, public place in the municipality at least 7 days before the hearing.
[ 1981, c. 215, (NEW) .]
3. Order of closing. After a hearing under subsection 2, the municipal officers shall file with the municipal clerk any order specifying the location of the road, the months or portions thereof for which it is to be closed and for how many years, not to exceed 10, the closing shall be operative. The legislative body of the municipality shall by vote either approve each order or provide that orders so made by the municipal officers shall be a final determination.
[ 1981, c. 215, (NEW) .]
4. Alteration of order. The municipal officers may on their own initiative, or upon petition by 7 legal voters of the municipality, at any time subsequent to one year from the date of a final determination, after notice and hearing, annul, alter or modify the original determination. The municipal officers shall file with the municipal clerk an order specifying any decision to annul, alter or modify, which shall not become final until the legislative body of the municipality by vote either approves each order or provides that orders so made by the municipal officers are a final determination.
[ 1981, c. 215, (NEW) .]
5. Appeal. The final determination by the legislative body or the municipal officers may be appealed to the board of county commissioners of the county in which the municipality lies, upon petition by 7 legal voters of the municipality within 30 days after the final determination is made. In an appeal before a board of county commissioners, the decision of the commissioners shall be governed by the standards set forth in this section.
[ 1981, c. 215, (NEW) .]
SECTION HISTORY
1979, c. 410, (RPR). 1979, c. 597, §§1,2 (AMD). 1981, c. 215, (RPR).
We own a home in Brownfield, Maine. Previous to our purchasing the home, it had been used as a camp (no electricity, septic, etc.) and the road was not maintained in the winter. The person we bought it from made it a fully functioning, year-round home. Now that the house is being used as a primary residence, we were under the impression that the town would have to maintain the road. We've have been counseled that at least since the case of Jordan v. Town of Canton was decided in 1970, it has generally been acknowledged that municipalities may not deprive residents of the right of access to their property without paying compensation. That case held that the former municipal practice of declaring some public roads to be of limited use and not eligible for publicly funded maintenance and repair was an unconstitutional taking of private property. Meanwhile, the town vote is coming up in two weeks on whether or not to close the road again for another ten year period. Can the town still legally vote to close the road even though there is now a full-time resident living there?
ReplyDeleteAh, the old "we don't maintain it because no one lives there" trap! Unfortunately, when a town gives someone this line, it doesn't necessarily mean that if someone moves in, the town will resume maintenance. At least you have summer maintenance, so you're better off than most of the people who contact us. Yes, a town can vote to close a road to winter maintenance even if someone lives there. Some towns rightly feel an obligation to serve their residents, and will resume winter maintenance even in the middle of a ten-year designated winter closing period if someone moves in. (The law does allow early resumption of winter maintenance, although some towns have tried to claim that their hands are tied until the ten years run out.) Other towns will chant, "You knew what you bought when you bought it," and refuse to do anything more than they have done in the past. I can't predict what your town will do. My best suggestion would be to read 23 MRSA section 2953 very carefully and be prepared to present reasons why they should resume winter maintenance. The law says that it is to be applied to "any road or roads, or portion thereof, in the municipality [that] are so located with reference to population, use and travel thereon, that it is unnecessary to keep the road or roads maintained and open for travel" in the winter. I would argue that even one year-round residence on a road makes it necessary to keep it open for travel. What if there was a fire? What if your house caught fire and set the surrounding woods on fire? Ask the voters how they would feel if it were their house. Be careful to point out that you are on a town road, not a private road, as there will be some who live on private roads who have to plow themselves out, and they won't see why you can't plow your road yourself. Point out that you cannot take on the liability for plowing a PUBLIC road, and that it's illegal for you to plow a public road because you don't have coverage under the town's liability policy. I don't know of any case where the decision in Jordan v Canton has been used with reference to winter closing, but you have a good point there. A town that does not provide winter maintenance on a public road is certainly impairing property access, and the Jordan decision found that access is a property right attached to the property, which cannot be taken or damaged without both due process and just compensation. The winter closing statute does provide due process, but not compensation. That brings me to another point. Did the upgrade in the home from seasonal to year-round result in an increase in property tax? If so, you should be getting added value from your added tax payment. (Although I don't imagine the increase is enough to cover the full expense of a winter's snow removal...)
ReplyDeleteOther considerations - do you have any school-aged children who will need to be able to get to and from school? Do you serve the Town in any capacity (volunteer firefighter, member of a board, volunteer at school or library, etc) and will need to be able to get out? Do you get mail delivered at your house, or do you have to pick it up at the post office or at a kiosk at the end of the road? If you are so lucky as to have mail service at your house, did you have to file a letter with the post office stating that you understand if the road becomes unsafe for the mail carrier, service may be withdrawn? If not, you can join us in trying to get enforcement of 23 MRSA 3202, which requires towns to provide for snow removal on mail routes. Two weeks doesn't give you a lot of time, or I would suggest a campaign to make yourself a valuable asset to the town. At all cost, avoid making yourself unwelcome. Don't try to improve the town - they probably like it just the way it is, and will resent an outsider. But show up and pitch in whenever there is a fundraiser, athletic event, community service project, etc. Stop and help your neighbor, and don't accept pay. If you throw your weight around, you will get nowhere. One more thing to bear in mind - if the town does vote to extend the winter closing, you have just 30 days in which to appeal to the County Commissioners. They are more likely to consider your needs without being influenced by local politics. But you need to follow the law precisely. You need to have seven voters of the municipality to petition with you, and you need to show up at the Town vote and at the County Commissioners' hearing. Read this, and learn! http://www.waldocountyme.gov/comm/user/RoadPetitionMinutes_2006-1_A_Ludden_vs_Jackson_2006-02-14.pdf If all else fails, wait a year or two and petition for an alteration of the order.
ReplyDelete(If that link doesn't work, chances are it inserted a hard return after 2006- and if you can find the code for that and delete it, the link should work.) Let me know how things go for you!
ReplyDeleteI just dug this up out of my archives: WARRANT FOR TOWN MEETING TOWN OF BROWNFIELD July 1, 2012 - June 30, 2013 Article 9: Shall the Town vote to approve the 2012 Order of the Municipal Officers to modify the 2007 Order (approved by voters June 13, 2007) which closed certain roads to winter maintenance unless a full-time resident moved in. "Explanation:
ReplyDeleteAt the 2007 Annual Town Meeting, Article 23 was amended and then passed as follows: "To see if the Town will vote to close the following roads, or portions thereof, to winter maintenance during the months of November,December,
January, February, March and April for a period of ten (10) years unless a fulltime resident moves in". If passed, this Article will operate to remove only the
underlined text that was approved at the 2007 Annual Town Meeting, and therefore, all of the roads listed will be closed to winter maintenance regardless of whether or not a full-time resident moves in. This modification will keep the ten (10) year order in effect meaning that closure of roads to winter maintenance will be looked at again in 2017". Referendum Passed 90 yes; 49 no
So Brownfield originally thought to resume winter maintenance in the middle of the ten years if someone moved in, but then changed their minds. I don't know what their reasoning was - I seem to remember one town thinking it was illegal to change the order, but I haven't been able to find that, so I don't know if it was Brownfield or another town. I'm not sure what this means for what they might do when the ten years run out.
I found another one in my archives: Waldoboro, Old County Rd - 2006 winter closing for ten yrs with understanding that if there is housing development the Order will be altered as the town would have a “legal and moral obligation to open the road back up to winter maintenance.” I certainly agree with the "moral obligation." As to legal obligation, the winter closing statute is ambiguous as to what it means by
ReplyDeletepopulation, use and travel." But the Constitution certainly requires that the Town not impair property access without providing compensation. Also, Constitutionally you should receive value in return for your payment of property taxes. Since the road you live on is public, they have an obligation to keep it passable for access.
My husband wanted to know if the Town granted any building permits for the improvements in the house. If so, the Town should have known that someone was intending to live there, and should have either refused to grant the permit (which also runs into Constitutional snags) or at least notified the person that there was no guarantee the road was going to be maintained in winter.
Thank you so much for the speedy response and all the information. Unfortunately, we don't have children - but have been very supportive of one of their biggest businesses in town (the Stone Mountain Arts Center). I don't know how much weight that will hold, but meanwhile, I'll review all the information you've sent. Unfortunately, we've already had to hire a lawyer, so being "unwelcome" will probably be an inevitable result. But thanks again. I'm sure I'll be in touch with questions.
ReplyDeleteI just checked into the Town Selectmen's reports and I see that the Town is trying to use Blueberry Lane as a precedent for your road because they required that Blueberry Lane be brought up to specs and paved before the Town took it over. But I think there may be a critical difference here that you should point out. It looks like Blueberry Lane was maybe a subdivision road? It is pretty much standard procedure now for towns to refuse to accept a new road as a town road unless it is first brought up to standard and paved. But when a road is already a town road, and it is in bad shape because the town has failed to fulfill its obligation to keep the road in shape for years, they can't just demand that private citizens do what the Town has neglected to do. See 23 MRSA 3651: http://legislature.maine.gov/legis/statutes/23/title23sec3651.html
ReplyDeleteYou can also often keep a Town from fulfilling the 30 year period of neglect necessary for them to claim a road abandoned, by proceeding under 23 MRSA 3652 through 3656, which you can get to by clicking the arrow in the upper right hand corner of the page for 3651. (Notice that this process only requires the signatures of any three "responsible persons," as opposed to the seven voters required to appeal winter closing. I believe "responsible persons" means people who can be billed for the cost of the hearing if the matter is found to be frivolous, which is unlikely to happen in a case like this.) You do need to follow the procedure carefully, though. First you notify the Town Selectmen in writing of the defective condition of the road, and of the town's obligation under 23 MRSA section 3651. If possible, try to get a town official (not just the clerk) to sign the letter indicating the date on which they received it, and have them give you a copy with their signature. If they don't address the defect within five days, you then file a petition (signed by at least 3 responsible persons) with the County Commissioners, stating that the road is not safe and convenient for travelers with motor vehicles as required by 23 MRSA section 3651, and that the Town has had five days actual notice. Enclose a copy of your letter to the Town. Then make sure you are present when the Commissioners hold their hearing, view, etc. The one risk in this is that the Town could try to claim the road abandoned under section 3028 if they have not done significant maintenance on the road for 30 or more years. If they make that claim, it takes it out of the hands of the Commissioners and makes the road a "public easement" which the public then has an unrestricted right to use, but for which the public bears no maintenance responsibility. Do you know if the Town had been plowing the road before the 2007 winter closing? Or had it been closed to winter maintenance for one or two ten year periods before that? If you can prove they had been maintaining it and/or plowing it regularly within the last 30 years, that should prevent a claim of abandonment. Again, keep me posted!
Our road (Potato Hole Road) has had other maintenance over the years since we've owned the house for the last 13. Grading, gravel, a new culvert, etc. Meanwhile, we've been plowing it ourselves all these years. To further complicate matters, we've had it listed for sale and had an offer fall through because the potential buyers backed out when they found out the road wasn't maintained in the winter (they called the town offices directly and were told various conflicting stories - including that it's a private road - which is not).
ReplyDeleteTry to document any maintenance that's been done on the road if you possibly can. If you can get affidavit's from road crews who worked on it, that would be great. The danger is that the town will claim those were only "isolated acts of maintenance," which will not prevent a claim of abandonment. Was the grading a regular thing, or did they only do it a couple of times in the last 13 years? I can also check with my contact at the Maine DOT and see if the Town has claimed your road's mileage as a road they maintain, in order to get Local Roads Assistance Program funding. (The money doesn't have to be spent on any particular road, but the amount of funding they get is based on the total number of miles they maintain.) They have records going back to somewhere before 1990, I think.
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ReplyDeleteGood news/bad news. My contact at the DOT says their records show 0.42 miles of Potato Hole Rd as summer-maintained only since at least 1990. Last full review was done in 2005 so they have no record of what may have taken place since then. So that means the town has claimed the first 0.42 miles of the road as being town maintained in summer at least from 1990 to 2005, which should keep them from trying to claim abandonment of that section of road, i.e. to the first house. Are you the first house or the second house? Has the town done any maintenance beyond the first house, that you know of?
ReplyDeleteWe are the first house on the road just about at the .4 mile marker! A new culvert was put in before our house last spring. And we have town records of other maintenance since 2005. There has been no maintenance beyond our house as far as we can tell - and the town maps show that Potato Hole Road is a town road just up to our house. That should be good news, right?
ReplyDeleteYes, that's excellent news! The vote on the winter closing must be coming up this week? Let me know how it goes. Points you might want to make for them to consider: the law requires them to consider the needs of population, and that includes you. As a taxpayer you should be getting some value in return for what you contribute to the town's finances, and if you have no access in winter that means you cannot benefit from any of the town's services because you can't get there. Access is a property right attached to property, which cannot be taken or damaged without due process and just compensation. There is a public benefit in keeping the road open in winter for fire access, and so that you can carry on business with the rest of the town. Also, you are not insured for plowing a public road, and if they prohibit you from plowing it they are depriving you of all reasonable access in winter. You have no obligation to provide winter maintenance of a public road at private expense. The Town has the obligation under 23 MRSA 3651 to keep its roads safe and convenient for the public with motor vehicles. Section 2953 is supposed to allow them to escape the burden of plowing roads that are not needed in winter, but that doesn't mean they can use that section to avoid winter maintenance of a road that is needed by those who live there. You may find there are people on private roads who don't see why you should get plowed out when they don't. Remind them that you are on a public road, and have no control over who can use it or when. Those on private roads can restrict travel on them. Let me know how the vote goes.
DeleteThe special town meeting was held last night (10/16). After explaining the various issues concerning the road, I suggested an amendment to the article to remove Potato Hole Road from the list of winter closings. That failed, not surprisingly. The vote continued with approval to keep our road (and a handful of others) closed for winter maintenance. Unfortunately, our next step is to file a suit.
ReplyDeleteSorry to hear that. But your next step shouldn't be filing a suit in court, but appealing to the County Commissioners, which is much simpler. The process is set out in 23 MRSA 2953, paragraph 5. "Appeal. The final determination by the legislative body or the municipal officers may be appealed to the board of county commissioners of the county in which the municipality lies, upon petition by 7 legal voters of the municipality within 30 days after the final determination is made. In an appeal before a board of county commissioners, the decision of the commissioners shall be governed by the standards set forth in this section."
ReplyDeleteCan you find 7 voters in the town who are willing to sign a petition with you? It doesn't need to be anything elaborate - something along the lines of, "We the undersigned voters of the Town of Brownfield hereby petition your board to review and reverse the Oct 16, 2018 decision of the Town of Brownfield to close the Potato Hole Road to winter maintenance for the next ten years. The said road is a town road and provides the only access to a year-round residence." Then provide the signatures below. Put together all your best arguments to present at their hearing.
One thing that might (or might not) be helpful would be to find out the total amount of property taxes paid by all the properties that road serves. How does the total compare to the cost of plowing the road?