My husband and I live on a public easement, and have struggled for years to keep it in repair while the public has insisted upon its right to use it indiscriminately.  We have tried repeatedly to get a solution through legislation, but have always had our suggestions overridden by more powerful interests.   

L.D. 1177 finally addresses some- although not all - of our concerns.  it remains to be seen what changes it may go through before it actually comes up for a vote, and even then there is no guarantee it will pass.  On the good side, what they have proposed is short, simple, and straightforward, which may increase its chances of passing.  They have made quite an effort to avoid any unfunded mandate, which would make it unlikely to pass.  On the bad side, its simplicity means that it leaves a lot unsaid.  This may lead to abuse of loopholes.

In short, we would like to have as many people as possible show up for the hearing on April 10.  For those who cannot show up, written testimony would be helpful.  We want to show the legislature that this is a problem that deserves their attention.  At this point, I am supporting the bill in general, but urging a few amendments to address the problems we anticipate with its current wording.

The bill, as written, would repeal 23 MRSA sec 3028, the abandonment statute.  This is good, in that section 3028 referred back to section 3026, and by so doing it meant that any road that was declared abandoned automatically became a public easement, with no opportunity to vote not to keep a public easement.  (More about this below, if you care to read on.)

The bill as written would also remove the automatic retention of a public easement when a way is discontinued.  This is also good, in that under current law the townspeople can vote to discontinue a road, thinking they are getting rid of it, but if they fail to vote not to keep a public easement, then a public easement remains.  A public easement has been defined by the Maine Supreme Court as being a road which is open to unrestricted public use, but which no one is obligated to keep in repair.  For the abutter, that is as if the Town gave them a car to use as their sole means of transportation, but kept a set of keys so everyone else could use the car whenever they pleased.  These other users never put gas in the tank or do any other maintenance on the car, so if you need to use it and find the previous user ran it out of oil and blew the engine, that's your tough luck.

We would like to see the bill go one step farther and abolish public easements entirely, or else require that if a public easement is to be kept, the town must keep the easement in repair for its designated use at public expense.

L.D. 1177 also requires towns to come up with a list of roads which they intend to keep in repair.  Those roads which they will not keep in repair will cease to be public roads, with a private easement being kept for abutters who would otherwise be land locked.  This again is an improvement; however, we have concerns about how abutters will be notified if they are no longer to have a public road.  We also think this is unfair to abutters who have been denied the right to keep the public out for years, and have suffered tremendous expense as a result, but now the town may just give up the road because they don't want to bear the expense.  The Town gets off scott-free, and the abutter never gets compensation for having had to maintain what was enforced as a public road for years.

As I said above, the bill, as written, would repeal 23 MRSA sec 3028, the abandonment statute.  This is good, in that section 3028 referred back to section 3026, and by so doing it meant that any road that was declared abandoned automatically became a public easement, with no opportunity to vote not to keep a public easement.  As we discovered too late on our road, that meant that even though our road had not been kept in repair by our town since probably before 1904, and had been treated as private property for decades, as soon as the Town declared it to be abandoned pursuant to section 3028 it became open to the public.  In order to have access to our property, we had to maintain half a mile of public road.  Other abutters refused to help, because they had a right to use the public easement, and therefore had no obligation to contribute anything.  They knew that they could count on us to keep the road in repair anyway because we had no choice.  If we had known at the time, we should have claimed abandonment by COMMON LAW on the basis of a twenty year period from, say, 1904 to 1924, and that would have prevented the town from regaining a public easement over what had been private property for years.

The abandonment statute was badly worded to begin with, and was amended several times, making it worse each time.  It was originally intended as a one-time opportunity for towns to get rid of liability for roads that they had long since ceased to use or repair, without having to pay abutters for loss of access.  Since the town had already not been repairing the road for a period of at least 30 years, abutters were really not losing any services.  The law was amended before it was passed, to allow towns to vote to keep a recreational easement over the road.  Apparently no one intended that by reference to section 3026, the road woud already be kept as a public easement.

The abandonment statute was then amended again so that instead of a one-time opportunity, it became applicable to ANY thirty year period.  Another amendment changed it so that "isolated acts of maintenance" would not prohibit a town from abandoning a road.  Then it was amended again to say that once a town has presumed a road to be abandoned, that presumption stands unless or until it is challenged in Court.  In other words, for those who do not have the ability to pay a lawyer to fight for them, once the selectmen decide a road is abandoned, that's that.

The trouble is, it was proven in Court years ago that another statute, 23 MRSA sec 2068, was unconstitutional because it did just what abandonment does now.  The Court said that when a town discontinued public maintenance of a road while retaining public rights to use the road, the access to abutting properties would inevitably be destroyed.  Since access is a property right, attached to property, loss of access amounts to a taking, and therefore requires both compensation and due process (i.e. notice, hearing, and appeal.)  The abandonment statute as first written did provide for due process, but not for compensation.  How do you compensate for the new taking that occurs each time an abutter rebuilds the road, only to have public use destroy it again?  The amendments to the abandonment statute have now gutted due process as well.

Once again, I urge anyone with an interest in abandoned or discontinued roads to attend the hearing and make your voice heard.