Maine Alliance for Road Associations
What legal obligation or liability does a formal road association, (either statutory or non-profit corporation form) have, to enable access for utilities during the winter months? That is, if a power line comes down or a pole is broken in a storm, does the association have a responsibility to clear the road?
That might be a good question for our attorney speakers at the MARA Conference, Sat. Oct 1, 2022.
Was there any insight on this? Thanks - John
I don't believe the question came up at the fall conference. I assume the question relates to roads that have only summer residents and therefor are not regularly plowed in winter. If the Members of the association vote not to plow, then the power company would have no obligation to go where the road is not plowed. Their only obligation would be to shut off the power to that line until the road becomes passable. In the old days, that would have meant disconnecting the wire. Fortunately, lines are now provided with shutoffs.
But if there are seasonal homes or camps that need power over the winter, for example to keep minimal heat going, or to power a security system, they would be out of luck. This is something road associations should consider when deciding whether or not to have the road plowed.
The same applies if there is a fire. If the road is not plowed, the local fire company would not have access. (At most, they might come in with backpacks as for a remote forest fire, just to try to keep the fire from spreading to the woods.) This is one of the arguments some road associations give for charging the same rate for dues for seasonal residents as they do for year-round residents. While the seasonal residents may think it unnecessary for them to pay for plowing even though they themselves do not use the road in winter, they nevertheless benefit from having the road kept open in case their house should catch fire.
As a side issue, there is the question of how 23 MRS 3105-A applies. This is the statute that allows a town to vote to authorize the Selectmen to use town equipment on "private ways" when they deem it in the best interest of the public for fire and police protection. The term "private way" applies not to private roads, but to roads which have been declared "public easements." (See 23 MRS 3021 for definition.) This statute has been interpreted in very different ways by different towns.
At one end of the scale is the Town of Windham, which obtained "private and special legislation" to allow the town time to convert all of its private roads to public easements so the town could legally continue its historic practice of plowing private roads. This is a huge issue for Windham because over half its roads are private roads. Towns with fewer private roads have already used section 3105-A to allow plowing by making those roads public easements. The tradeoff is that those roads are then open to public use.
At the other end of the scale is a situation reported by one of my Maine ROADWays friends, who says that when a transformer on his public easement caught fire, the fire company sat at the end of the road and watched, saying they could not come in because it was not a public road.
Somewhere in the middle is the town of Fayette, which says that section 3105-A only applies WHEN there is a fire. That is, our Selectmen apparently are of the opinion that if our house catches fire in the middle of a snowstorm when we have not plowed yet, they would have to call a town meeting to get the voters' permission to use town equipment on the public easement. Then the Selectmen would have to consider whether putting out a fire at our house is in the best interest of the public. Then they would have to get the plow driver out of bed and have him drive across town to get the town's plow truck. Then he would have to drive across town to get to our road to begin plowing it. On the other hand, they do admit that WHEN there is a fire, they already have the authority to do whatever they need to do. As they have told us, "Don't worry, the plow truck will be right in front of the fire truck." That being the case, what would be the point of having a law that allows them to do what they already have the authority to do?
Our non-attorney opinion is that section 3105-A is supposed to allow a town to keep a fire lane open IN CASE there should be a fire. In other words, a town is not obligated to plow every road all winter. But where there is a road with winter residents who plow the road themselves, but after a while the snowbanks are encroaching on the road so fire access is becoming dubious, section 3105-A should allow a town to make a pass in and out with their wing plow to keep the fire lane open. It seems a town should have some obligation to see that they can provide their taxpayers with the services their tax dollar pays for.
That being said, someone is sure to say, "caveat emptor" - or, as we often hear, "You knew what you bought when you bought it." In other words, if you knowingly buy a place on a road that is not maintained in the winter, you should not be surprised if it becomes inaccessible when it snows. And if your road association votes not to pay to keep the road open in winter, they should not expect that the power company or the fire company can get there. So this is something that should be discussed at your annual meeting.
Actually, two questions regarding winter maintenance did come up at the October 2022 conference. I submitted them in writing, and they were both addressed by attorneys Denison and Cunningham, who led that excellent morning session.
The first question as submitted was, “Is it permissible for Statutory Road Association bylaws to exclude winter maintenance (i.e., plowing and sanding)?” The attorneys answered in the affirmative, saying that many road associations in Maine do not include plowing and sanding in their road maintenance programs. They also indicated that the statute had been interpreted (by the courts, I assume) to give associations this latitude. Also, a chat response from another remotely connected attendee stated that, “...we define 'maintenance' in our by-laws so as to exclude winter plowing. Owners may plow, but they do that their own expense. Several homeowners split plowing every year. Our by-laws also say they are responsible for damage (which happens every few years and we assess them.)”
The second question as submitted was, “Following up on the winter maintenance question, would the association have liability in the event emergency vehicles needed to get through to a fire during winter, and could not?” Attorney Denison took the lead in on this question and answered with two words... “It depends.” I detected a bit of squirm factor as the attorneys batted this one around. I took away only that it's highly advisable for an association that does not perform winter maintenance activities to set that expectation clearly in its bylaws. At the same time, neither attorney was aware of a specific instance of such a situation, so it may be that this hypothetical is, to all intents and purposes, untested.
That's my recollection of the answers, at least. I joined MARA last year, and I am extremely grateful for the opportunities the alliance affords its members to learn and compare notes, and especially through this forum. If I might offer a bit of constructive feedback on the conference, it would be very helpful if there were a transcript or at least some record of the conference content available after the fact. This might better enable attendees to share findings and other information with their association members...without filters and free from memory fog. Just a thought.
Yes, I do recall those questions, and I believe your account of the answers is correct. What I was thinking was that the subject of access for utility repairs was not discussed - but the questions certainly are closely related.
We would love to be able to record the attorneys' presentations and post them on the MARA website. But the attorneys are being extremely generous with their time as it is. Where else can you get two attorneys for two hours, where their only pay is some little gift as a small token of appreciation? They try to answer only questions of general interest so as not to be giving away free legal consultations. Their one request of us in return is that we NOT record their presentations. They have provided us with a number of sample forms to post on the website. We are not going to ask to be allowed to post a transcript as well. We love their generosity and are not going to press for more.
The Maine Alliance for Road Associations