Maine Alliance for Road Associations
I live on a private dirt road that has residents both within and outside a subdivision. An ad hoc users group was formed 25 years ago by those of us outside the subdivision. We all live at the beginning of the roadway. Over the course of the past 25 years, the subdivision lots have been sold and there are now more residents that live within the subdivision (11 homes) than the six of us who do not. We have been happy with our ad hoc group since it's establishment, we've all always paid our fair share of road maintenance/snow plowing, etc and all worked well together. Those in the subdivision have now decided they want to establish a statutory road association, we original members outside the subdivision do not want to be forced to participate. Is it possible for non-subdivision members to remain members of the ad hoc users group and not join their new association? Can two "organizations" exist on one private road?
I am not an attorney and cannot offer legal advice. My response is based on reading the Private Ways Statute (PWS) and my experience as President/Road Commissioner of our statutory road association. Therefore, I advise you to check with qualified experts before acting.
The PWS, 23 M. R. S. §§3101-3104, offers a means for people living on a private gravel road to form and administer a road association in which road maintenance and related costs are shared fairly and equitably by all property owners along said road. Selections from the following 3 subsections of Section 3101 state: (italics are mine)
2. When 4 or more parcels of land are benefited by a private road, private way, or bridge as an easement or by fee ownership of the private road, private way or bridge, the owners of any 3 or more of the parcels, as long as at least 3 of the parcels are owned by different persons, may make written application to a notary public to call a meeting. … Copies of the warrant or similar written notice must be mailed by means of the United States Postal Service to the owners of all the parcels benefited by the private road, …
4-A. A road association under this subchapter through its commissioner or board may address present and future repair and maintenance of a private road, private way or bridge as authorized by the owners at meetings called and conducted pursuant to this section until the association is dissolved by a majority vote of its members.
5. By a majority vote of the owners present and voting in person or by written proxy or absentee ballot, the owners may determine what repairs and maintenance are necessary and the materials to be furnished or amount of money to be paid by each owner for repairs and maintenance and may determine the amount of money to be paid by each owner for other costs, including, but not limited to, the cost of liability insurance for the officers, directors and owners and costs of administration.
According to my reading of the above subsections, if three owners in the subdivision section along your common private road choose to form a statutory road association according to the steps indicated in the PWS then you and other owners in the non-subdivision section will receive notice at least 30 days in advance of the proposed meeting. All owners along your road present and voting in person or by proxy or absentee ballot will determine by majority vote if the statutory road association is approved or disapproved.
It would not be possible for you to avoid joining the new statutory association if approved by the majority of owners on your private road. Unless there is a significant divide in the vision of how to achieve satisfactory road maintenance between your two groups, you may find working together, distributing the costs fairly and equitably among all owners, actually lowers costs per owner and improves your road. Also, you may be able to settle on a lower share of maintenance fees because you live at the beginning of the road. Owners on our road have continued to support our statutory road association since its beginning in 2016 and we now have effective means to enforce payment of maintenance fees in delinquency.
I'll add my "non-attorney" advice - I see this a bit differently from the above response. I would want to see a map of how the two sections of road are situated. If the people with the ad hoc group are, as I understand it, all at the beginning of the road, so that those in the subdivision must travel the "ad hoc" portion of road, but those in the "ad hoc" group have no reason to travel on the subdivision portion of road, it may indeed be possible to have two road associations. The "ad hoc" group could re-form as a statutory road association and require those in the subdivision to pay because they benefit from the first portion of road. But those in the subdivision could form an association that cares for just the road within the subdivision. They could not require the ad hoc group to pay if they do not "benefit from" that portion of road. But this could cause friction because those within the subdivision would have to pay two bills, for the two different sections of road. As the above reply states, there may be advantages in joining the two together, if nothing else, to avoid friction. There are ways you could devise a formula for payment that would charge per footage of road used, but I wouldn't recommend that. It's cumbersome and likely to be seen as unfair by those who live farthest in. Our experience has been that if we charge everyone equally, and they see that the condition of the road is improving as a result of more people paying, then eventually everyone will participate and more will get done with less burden on each member than if only a few had to pay the whole bill.
The non-subdivision owners at the beginning of the road would need to benefit from the subdivision section of the road to be included in the initial mailing of the warrant by 3 owners in the subdivision section.
"I see how the phrase 'the owners of all parcels benefited by the private road' in §3101 (2) may be used to allow for more than one statutory road association on the same road."
To be clear, you can't have more than one road association responsible for the same PORTION of a road. That would be redundant. But I believe you can have two associations if each one is responsible for a different portion of the road. This would be similar to the situation where a road association is formed to take care of one road, but later a subdivision adds a side road off of it. Landowners on the new side road would have to use the original road to access the side road, and therefore would be owners of parcels benefited by the original road. But the original road association would not be obligated to take on the extra expense of also maintaining the new side road, so it might be necessary to form a separate road association involving only the owners of parcels on the side road.
You said, "The non-subdivision owners at the beginning of the road would need to benefit from the subdivision section of the road to be included in the initial mailing of the warrant by 3 owners in the subdivision section."
To state the flip side, if the non-subdivision owners at the beginning of the road do not need the subdivision section of road for access to their property, and have no reason to use the subdivision section of road, then they would NOT be "owners of ... parcels benefited" by the subdivision section of the road, and therefore would not be required to be members. But there could be situations where they would benefit from the subdivision portion of road, for example if the entire road forms a horseshoe so there is access possible from both ends, or if the subdivision road provides lake access for everyone on the road.
There could also be economies of scale to having one road association take care of the whole road - for example, having one contractor bid on plowing the whole length of the road, rather than having separate bids on each section of the road.
The Maine Alliance for Road Associations