As I read it, Title 23 §3101-3106 is permissive in nature, something I call a piece of enabling legislation whose primary purpose is to inform the public that if certain conditions are followed certain rights or privileges will be granted.  It is common convention that the words “shall” and “must” are mandatory and “may” is permissive.   And, as I understand it, this convention is widely accepted by the courts.  The word “may” is used throughout §3101-3106 and “shall” is used only twice - §3101.5 ”…..the commissioner or board shall report the outcome of all votes to the owners…..” and §3104 ”…..the commissioner or board shall give the owner against whom….” a civil actions is to be taken, written notice.  The word “must” is used quite liberally throughout the statute but only in those instances where an association has chosen to avail itself of the rights and privileges granted by the statute.  It is not used to define maintenance. There is no maintenance or repair that an association must do.

Therefore, in my opinion, a statutory association may include or exclude in it’s list of maintenance items just about anything that is necessary to maintain their roads except anything that the statute specifically excludes (more on this later.)  

To paraphrase the statute, owners may call a meeting, but the notice must be sent by US mail. The owners may elect a board or commissioner, may address current or future maintenance, may determine what repairs and maintenance are necessary, may pass maintenance budgets, may assess the owners, but the assessment must be fair and equitable.  In return for selecting to do those things permitted by the statute in the way the statute says they must be done, the board or commissioner may take legal action against a delinquent owner and do so without fear of claims that their actions are a slander on the title of the delinquent owner.

Perhaps the most direct instance of my point is found in §3101.7.B that states a commissioner, board or owner is immune from civil liability for actions taken for the following activities…..”The determination of repairs and maintenance to be undertaken.”

To be clear in §3101.B “Repairs and Maintenance does not include paving….” except under certain conditions.  I have heard some owners lamenting that it is illegal for their association to repair or maintain existing paving that does not meet the conditions of the statute.  In my opinion, that simply is not so.  The statute does not make it illegal.  It simply does not include paving in its definition of repairs and maintenance and by extension, a cost which may be assessed.  Associations maintaining paving in conflict with the statute may not be able to collect a judgement against a delinquent owner for the cost of repairing paving but that does not make the repair illegal or the assessment illegal, just unenforceable.  I suggest it would be prudent to not file a claim against a delinquent owner in these cases for fear of jeopardizing the immunity granted by the statute.  But if an association assess for such work and owners pay, in my opinion, no harm no foul.  It is simply consenting adults.  It would be interesting to see just how strictly a court interprets the statute in this matter particularly in cases of life safety over compliance with the statute.  

To address the last question, in my opinion NO association, no matter how formed is legally obligated to operate under the terms of Title 23 §3101-3106.  It is a permissive statute: “If you chose to do this in this manner then you will get that.” If you chose to not do things in the manner prescribed then you simply lose the advantages and protections of the statute, you have done nothing illegal.  That does not mean that you have done nothing actionable.  If a board or commissioner or owner does not do things as prescribed then the protection against liability may be lost.

Ray, I think your analysis of "may" vs "shall" or "must" is pretty accurate.  As you say, the statute allows an association a lot of leeway in deciding what they will or will not do.  But if a person suffers damage to their property because emergency equipment or utility repair equipment was unable to access the property when needed, that may not be enough to prevent a person from attempting to sue the association for failing to keep the road open.  (Whether they would win or not I cannot guess.)

I do agree with the questioner's conclusion that, "associations that might be loosely modeled on the 'Private Ways Act' but that may not have meticulously followed the required steps to become a statutory road association, would not be legally obligated to operate under any provisions of that statute."  But they also would not have any of the protections or authorities provided by the statute, i.e. the basic liability protection under 23 MRS 3101 (7), and the ability to file a Notice of Claim under 23 MRS 3104.

With regard to the matter of paving, Ray, I think your last paragraph sums up the concerns.  You said, "If you chose to not do things in the manner prescribed then you simply lose the advantages and protections of the statute, you have done nothing illegal.  That does not mean that you have done nothing actionable.  If a board or commissioner or owner does not do things as prescribed then the protection against liability may be lost." 

This echoes a caution attorneys Mary Denison and John Cunningham have repeatedly stressed.  That is, if you follow the statute to the letter, any attorney who is asked to take a case against the association will have trouble finding grounds that will stick, and therefore will likely refuse to take the case.  But if you deviate from the statutory requirements in any detail, they may see a chance to challenge the legitimacy of the association's activities.  Even if the association is not found liable for damages, the consequences could include suffering the cost of defending against a lawsuit, and losing the ability to enforce the association's activities, i.e. the power to require that anyone pay their dues.