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Maine Alliance for Road Associations

No ROW = No benefit?

  • 02 Aug 2022 9:40 AM
    Reply # 12870541 on 12860621

    Thank you Andrew!!!!!!!

    If I understand the concept of "Fair and Equitable" it is achieved after all the arguments of unfairness and inequity are exhausted.   Fairness and equity are both measurable. When parties compromise in a F&E dispute, one party still loses and one party will gain. Not even a glimmer of compromise has surfaced after 4 years of statutory .....torture.


  • 02 Aug 2022 9:56 AM
    Reply # 12870565 on 12860621

    Thank You, Erin!!!!!!

    Yes, a special meeting can be called with the consent of 33% of the owners.  Unfortunately there is another clause further in:

    "Three fourths (3/4) of the number of members of the Officers shall constitute a quorum at all meetings..."

    And I have asked your question to all the other owners via email and there were no responses.  And yes, I am sure that the fair thing is recognized by everyone.  "I wouldn't want to be that guy!!!" is on their minds when they see me coming, I am sure....

  • 02 Aug 2022 11:48 AM
    Reply # 12870703 on 12860621
    Anonymous member (Administrator)

    I read your quote from the by-laws (above) as applying to all meetings of the Officers only.  There is no quorum necessary for annual or special meetings of your association.

    Last modified: 02 Aug 2022 11:51 AM | Anonymous member (Administrator)
  • 02 Aug 2022 12:45 PM
    Reply # 12870761 on 12860621

    Roberta, thank you for your second response!!!!!!!

    I will address each paragraph:

    1) The Rental property is now under construction.  At first the Board asked for and received from a majority vote at the annual meeting, authorization to bill them annually at 5 times the rate of the equal pay individual rate ( $500 x 5= $2500!!!!!).  SCRA was threatened by a lawsuit, and a special meeting was called to void the original 5x and to accept a 2x in place.  It was approved. 

    2) I am still foggy about "appurtenant" and the limit of my ROW.  If I can paraphrase your explanation:  My ROW ends at the beginning of the narrowing section of the road beyond the 50 foot width.  The 50 foot width, however, continues 332 feet beyond my property line.  And would not my ROW  on SCR end at my property line?  According to Hermansen (his first line in my attachment above) : "under the common law generally recognized by most states an easement holder may use an appurtenant easement only for the benefit of the appurtenant parcel.." 

    I appreciate your further clarification and apologize for the imposition.

    3&4) Your quote:  "But why should the owner of the tenth lot have to pay $100, when most of the wear and tear on the rest of the road is due to use by others?

    The owner at the end of the road pays the same amount as each owner pays for the amount of road they use.  the guy at the end uses lets say 100 feet, the guy at the beginning uses 10 feet in your example.  Each pays $1 per foot of road used.  In my situation of equal pay, I am paying $1.94 per foot the owner at the end of the road pays $.07 per foot.  

    Your quote: "Now that may look relatively simple to figure out, but how do you do the calculations for each owner when the lots are different sizes, so that each section of road each owner uses represents a different percentage of the length of the road?"

    Although the lots are different sizes, it is not a determining factor. The spreadsheet attachment in my first query is quite revealing.  Everyone's driveway was measured from Webbs Mills Road.  From there the calculation is simple:  Add all the driveway distances; then each individual driveway distance is divided by that number;  then multiply each answer for each driveway by 100 to give you the percentage of road that each driveway uses.   That percentage when multiplied by the total budget for maintenance is each owner's  bill.  Please see the attached spreadsheet I have attached.  On the spreadsheet there are hidden columns  for the sake of keeping the page readable. It shows a comparison to the current equal pay and the pay by distance method. Very simple, and since the road is linear, the pay by driveway distance is the fairest method: The more road that is used the more one should pay, and vice versa.....

    Seasonality is already factored into the road calculations.  Although, from a friend at another association which  does not distinguish seasonality based on the fact that if there was a fire threatening a summer home in the winter, then keeping the road clear of snow should also be part of their fee.

    5)  Your quote:  "Another factor to consider is the value that you are getting.  It looks like the dues you are being asked to pay are comparable to what it would cost just for snow removal on the length of road you use.  (The plow contractor on our road charges $250 to plow a 100 foot driveway for the season.) Yet presumably you get summer maintenance as well."

    Unfortunately, the value i am getting is negative.  Maybe it would cost $600 dollars per year if I were to pay by myself.  But I am not by myself, there are 30 other users to my 228 foot road.  $600 dollars is looking to be my bill (and everyone else's bill) this year.  The real value goes to the owner at the end of the road who would have to pay $6,000 dollars for plowing.

    6)  It is a shame that court fees and mediation fees are necessary to deal with these road problems.  There was less trouble before 3101.  The state should have free mediation to deal with all the known and unknown troubles, especially as statute clarifications become even more problematic.

    Also, I believe that mediation would be exempt for 3101 cases since the representative for an association has no authority to make decisions for the owners. I may be wrong, though.

    7)  In order to put a driveway to Webbs Mills Road (Rt85) I would first need to get approval from the state (because it is a state road). If approved, I would then need approval from the town.  I have already asked the town if they would approve a driveway if the state said yes.  They said no: I have to use the existing access point (SCR).  A variance would be needed, and that may be a consideration.

    I am researching what I need to do in order to bring this to court at a minimal cost as well as without having to hire an attorney.  At $300+ per hour........  I am  73, retired and living on a fixed income, cannot qualify for free legal aid...... so I fight on.

    Thank You, agian your insight and everyone's is enlightening.

    1 file
    Last modified: 08 Aug 2022 5:47 AM | Anonymous member (Administrator)
  • 02 Aug 2022 12:46 PM
    Reply # 12870762 on 12870703
    Anonymous wrote:

    I read your quote from the by-laws (above) as applying to all meetings of the Officers only.  There is no quorum necessary for annual or special meetings of your association.

    Thank you for pointing that out!!!!!!
  • 05 Aug 2022 2:46 PM
    Reply # 12874814 on 12860621

    I agree. Your by-laws state there is a quorum for officers meetings. It appears there is no required quorum for special meetings.

    The paragraph states: 

    "Special meetings of the property owners may be called by the Officers or by the property owners upon the written request of thirty-three percent (33%) of the property owners of the Association. Written notice of any such meeting designating the place, day. hour thereof shall be given by the Officers to the property owners at least thirty (30) days prior to the date so designated."

    In my opinion, there is a disconnect in this paragraph because once you get 33% of the owners to call a special meeting, it seems you have to hand it off to the Officers to take action.  Rather, it should be the 33% group calls the meeting, designating the time, place, etc.  The way it is written, the Officers could stall/postpone the Special Meeting request, or even ignore it if they believe the special meeting request doesn't conform to the remaining by-laws. The idea of the special meeting is that it can be called by non-officers in order to address an issue/problem that might be counter to the officers' position. That's why handing it off to the Officers to make the meeting happen seems problematic.

    In my opinion, by-laws should be very specific. I believe, but am not positive, that it takes a unanimous vote to change by-laws. Perhaps if you could pick apart what the by-laws are lacking you could garner support from other members to at least get some traction.

    Do you have a separate declaration of easement rights and restrictive covenants document?

  • 06 Aug 2022 9:21 AM
    Reply # 12875288 on 12860621

    Thank You, Erin!!!!!

    I agree about the disconnect. It seems pervasive throughout the document.   Unfortunately, it was rushed through because someone was in a hurry, and the quality now suffers.

    I am afraid apathy is rampant among the owners.  Swaying anyone from the status quo is impossible.  At meetings I am usually shut down and have had to share my thoughts via email. Responses to my pleadings have been zero or against me.  Any change to the status quo, is in essence  asking the majority of owners to pay more. 

    You wrote:

    Do you have a separate declaration of easement rights and restrictive covenants document?

    I do not know what that is.  All I have is what is on my deed which is plain verbiage as shown on attachments above.

    Thank You, again!!!!

  • 06 Aug 2022 4:37 PM
    Reply # 12875530 on 12860621
    Anonymous member (Administrator)

    I do think your bylaws are ambiguous.  Regarding the quorum, does it mean that 3/4 of the officers need to be present at all meetings including one called by the other members?  That's another place where a meeting could get stonewalled.  I know of one road association that folded within a few years of its formation because they chose a large number for a quorum, and after the first meeting they never got that number to show up.  Therefore they couldn't even vote on a dues assessment or vote to hire a plow contractor.  They managed to stumble along for a few years with voluntary dues payments by a smaller number of members each year, until it became evident that the only remedy was to scrap that association and start over with better bylaws!

    Regarding the appurtenant easement, if the part of the fifty foot wide strip beyond your property is a benefit to you (for example to enjoy walking on,) then I don't see why you would not have the right to use it because that whole section of road is appurtenant to your parcel since it's in your deed.  Appurtenant is not the same thing as adjacent to or having frontage on.  Appurtenant means the right to use it is deeded to your property.

    You make a good argument for assessments based on length of road used.  But I'm sure the person farthest in would argue just as strongly as you have that it's unfair to charge him more than anyone else.  Besides, I still fear that if assessments are based on any variable rather than on solid categories such as developed/undeveloped or seasonal/year-round, that the people who feel that is unfair to them are going to propose basing the dues on some other variable such as property value, frontage on the road, number of trips per day, number of vehicles associated with each property, etc.

    In your example where the last person on the road would have to pay $6,000 for plowing, what I find unfair is that if each person is paying at the same rate per foot, then the plow contractor is getting paid ten times as much for plowing past the first lot as he is for plowing past the last lot.  That would almost make sense for summer maintenance, where a section of road used by ten people wears out ten times as fast as a section of road used by one person.  But the plow contractor doesn't have to plow the first section of road ten times for the ten people that use it and plow the last section only once for the one person who uses it.  The whole road only gets plowed once, so why should all ten people have to each pay as much to plow that section of road as one person would pay for an equal section at the end of the road?  That's why I said you'd have to take into account how many people are sharing in the maintenance of the road past each lot, and that's why you'd have to figure out the footage for each lot and not just the total footage from the entry to the road to each person's driveway.  It's hard to paint an intelligible picture of this with words so maybe we'll have to just agree to disagree on this one.

    I like your idea of the state providing free mediation for road associations.  You do have a point about who would have to be present for the mediation, though.  I think the members would have to vote on who would represent each side of the dispute, or else show up themselves if they can't trust someone else to negotiate for them.  There are mediators who specialize in community mediations with groups of participants.  Also, the Attorney General's Office offers some mediation services for consumer complaints, and is working to expand that program, so maybe that's something to work for.

    Sounds like a different entry to your property wouldn't be practical - but that's part of brainstorming.  Anyone with an idea - no matter how impractical - tosses it into the ring in the hope that maybe it will trigger someone else to come up with something that will actually work.  For example, I once challenged a group of 4-H club members to brainstorm how to rescue a horse that broke through the barn floor and was being held up just by a beam between her hind legs.  (True situation.)  When my husband heard me propose the scenario, he said, "Cut the beam!"  Sounds cruel to let the horse drop, but it triggered the idea to go into the crawl space below the barn and see if maybe the horse's feet were just an inch above the ground, or if the ground could be built up to where she could reach.  Anyway, my point is that I did not intend to offend by suggesting something totally impractical, but was hoping it would help to think outside the box.

    Finally, I fully understand your being faced with the challenge of representing yourself in court.  Been there, done that!  It's not a task for the faint of heart, but it can be done.  If you do go that route, I would highly recommend spending some time at the courthouse observing how things are done, and then study papers that have been filed in similar cases to learn how to compose them properly.  Then get the Rule books from the Law Library and study!  Courts are sometimes more lenient with people who are representing themselves, but at other times they will say you are held to the same rules as everyone else.  As for attorneys, the opposition will jump at any chance to get your case thrown out on a technicality.  It can help immensely if you can get an attorney to consult with you from time to time when you need a little help.  I wish you luck!

  • 08 Aug 2022 4:00 PM
    Reply # 12877113 on 12860621

    Thank You, Roberta!!!!!

    I appreciate your brainstorming , ideas and thoughts, no matter where afield they may go.

    It appears the the 3/4 quorum is in the Board of Officers' paragraph, and I believe that it is a sort of "attendance policy".

    You wrote:   "Appurtenant means the right to use it is deeded to your property."

    I now have a clear understanding of appurtenant and its application to my deed, and easement.  Thank You!!!!!!   This was a key breakthrough.!

    You wrote: "But I'm sure the person farthest in would argue just as strongly as you have that it's unfair to charge him more than anyone else.  Besides, I still fear that if assessments are based on any variable rather than on solid categories such as developed/undeveloped or seasonal/year-round, that the people who feel that is unfair to them are going to propose basing the dues on some other variable such as property value, frontage on the road, number of trips per day, number of vehicles associated with each property, etc."

    My experience is that there is no variable method that everyone would be happy with.  We tried property tax value, and that was shot down. Road frontage on this road is very eratic with many homes off on side roads and homes crammed at the waterfront with little frontage and a long road to get there.  I figure the more road one uses (needs, if you think about it!) to get home the more on needs to pay. That  has to be the fairest way, otherwise it becomes a welfare system for the greater user.  Unfortunately the majority folks here chose their own personal least cost method which was my HIGHEST cost method.

    You Wrote:  "In your example where the last person on the road would have to pay $6,000 for plowing, what I find unfair is that if each person is paying at the same rate per foot, then the plow contractor is getting paid ten times as much for plowing past the first lot as he is for plowing past the last lot.  That would almost make sense for summer maintenance, where a section of road used by ten people wears out ten times as fast as a section of road used by one person.  But the plow contractor doesn't have to plow the first section of road ten times for the ten people that use it and plow the last section only once for the one person who uses it.  The whole road only gets plowed once, so why should all ten people have to each pay as much to plow that section of road as one person would pay for an equal section at the end of the road?  That's why I said you'd have to take into account how many people are sharing in the maintenance of the road past each lot, and that's why you'd have to figure out the footage for each lot and not just the total footage from the entry to the road to each person's driveway.  It's hard to paint an intelligible picture of this with words so maybe we'll have to just agree to disagree on this one."

    I think that we should say that the plow driver will plow 1 mile for $6,000.  It is immaterial to the plow driver how much each customer pays. he collects one fee. But who pays and how much?  The guy at the 1 mile (A1) distance needs 1 mile plowed. Myself  (A2) at the 228 foot distance need 228 feet plowed.  I should not need to pay for the plowing that A1 needs. If it is just the 2 of us, My cost should not be half ($3000) when I only need 228 feet plowed.  Add more people on the road and if they are required to pay equal parts of the $6000, they are paying too much. The more people on the road the less A1 pays. My point is distance is a direct cause of the higher cost of plowing.  A formula for each driveway distance (driveways are what people use, not any distance that their property may extend beyond it) that one needs to get to the main road is the absolutely fairest way to assess (in my case).   A1 cannot complain about paying more.... he is the reason for the high cost simply because he needs more road. I hope this helps and it is what I am dealing with.

    You Wrote:    "Finally, I fully understand your being faced with the challenge of representing yourself in court.  Been there, done that!  It's not a task for the faint of heart, but it can be done.  If you do go that route, I would highly recommend spending some time at the courthouse observing how things are done, and then study papers that have been filed in similar cases to learn how to compose them properly.  Then get the Rule books from the Law Library and study!  Courts are sometimes more lenient with people who are representing themselves, but at other times they will say you are held to the same rules as everyone else.  As for attorneys, the opposition will jump at any chance to get your case thrown out on a technicality.  It can help immensely if you can get an attorney to consult with you from time to time when you need a little help.  I wish you luck!"

    Thank You!  One of my goals is to make sure that as I research the legalities I am able to negate any costs  to me for an attorney.  Passing the costs to the defendant (unfortunately the Association members due to the Boards behavior) is how I am basing my going forward.   I believe that I am very, very close.

    Thank You, again!

    More please!!!!!

    Last modified: 11 Aug 2022 9:22 AM | Anonymous member (Administrator)
  • 08 Aug 2022 5:05 PM
    Reply # 12877221 on 12860621
    Anonymous member (Administrator)

    One further caution:  When you mention the possibility of a lawsuit, people's hackles go up.  I much prefer professional mediation, where each party gets to state their concerns, and the mediator assists the parties in finding some common ground they can agree on.  The solution, if you reach one, will be one the that parties have come up with themselves.  If you do not reach a solution, hopefully the parties will at least understand each other better and therefore be able to live peaceably as neighbors.  

    In a lawsuit, by contrast, a judge creates and hands out the final decision, sometimes so long after the case was heard that you get the impression the judge forgot what you said or didn't fully understand the situation.  You're stuck with it unless you want to go to the further expense of an appeal.  All too often the decision leaves both parties unhappy, and more angry with each other than they were before, due to the legal fees and costs.  It rarely makes for better neighbors.  Family and Community Mediation (FCM) has some excellent mediators who specialize in working with communities.

                            The Maine Alliance for Road Associations


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