I am posting this questions as I don't see a discussion forum that seems to match our specific issue/question.

We are trying to establish a SRA on a public easement that dead ends at a town owned lot.  We are considering describing in the by-laws that the portion of the road maintained by the association stop prior to the town lot.  This way we need not get the Town involved in any way, shape, or form.

The law on SRA's doesn't seem to exempt town's from being notified of the organizational meeting and voting when there is town owned property on a road that the owners want to establish a SRA.  This is why we are writing the by-laws to stop the maintenance prior to the town owned lot.

Thoughts? 

Interesting question! When I first saw this, I assumed you have a “public easement” over a former town or county way that was discontinued or abandoned. As founder of Maine ROADWays, (Residents & Owners on Abandoned & Discontinued Ways,) that’s a complaint I’ve heard a number of times. But then I realized which road you are talking about. I have already been contacted by another abutter on your road, who told me the easement was deeded to the town. She was going to get more information for me, but I had not yet received it.

So I went to the Registry of Deeds website and did some digging. I found that there were two deeds that granted a right of way to the town, along with a lot of land to which the right of way provides access. The first deed, which was granted in 1985, included the following clause: “Also conveying herewith the sum of $1,000 to the Inhabitants of the Town of Perry in TRUST to be invested by said Town and the interest thereon to be used for the purpose of providing basic maintenance of the lot and right of way herein conveyed.” (The second deed simply clarified the location and scope of the right of way. However, it doesn’t seem to correct a typographical error in the original deed, which identified the lot as lot 15 on map 5 instead of lot 15 on map 3.)

A right of way granted by deed in order to give public access to a piece of public land is a bit different from a public easement that is created over a former town way when that way is discontinued for the purpose of saving the town the expense of maintaining it. In your case, I believe the road qualifies as a private road, since it never was dedicated and accepted as a town way. But unlike most private roads, where the public can be excluded, in your case the public also has a right to use the road. It could be argued that the public is basically like any other abutting landowner who is granted shared access to their property over the private road, and as such they have the same obligation as other landowners do to contribute to the cost of keeping the road passable.

I wonder if that $1,000 Trust was well invested, and if it produces enough interest to provide an ongoing share of road maintenance? Even if it does not, it seems that by accepting that deed, the Town would have acknowledged some obligation to contribute to maintenance. On the other hand, it’s possible the TRUST was set up because the Town only agreed to accept the deed if it was not going to cost them anything to maintain the access. The deed refers to “Articles 53, 54, and 55 of the Warrant for the 1984 Town Meeting.” I would like to see what those Articles state, and whether they would shed any light on the matter of road maintenance. You should be able to obtain a copy of those Articles from your Town Office. Make sure to also ask for the result of the vote, as you can’t just assume the Articles were approved.

I don’t think it would hurt any to call an initial meeting to form a statutory road association under 23 MRS section 3101, and to notify the Town as one of the owners of property “benefited by” the road as required under section 3101(2). It seems the Town should contribute proportionally to the public’s use of the road. (Make sure you are careful to follow the statute precisely, so there is no flaw that could be used by the town to prove the association invalid.)

There is one other case in particular I have seen where a town had suspended maintenance on a town way where the town owned public parkland at the end of the road. If my memory is correct, attorney Mary Denison was considering filing suit to get the Town to become a contributing member of a road association. But the Town decided it was time to resume maintenance of the road. That case was a bit different because the road was a town way which previously had been maintained by the Town. In your case the road never was a town way, and I wouldn’t hold my breath waiting for them to accept it as one. But I do think that they should be treated like any other owner of land benefited by the road, considering the public’s proportion of use of the road.

I hope that one of the things the Abandoned and Discontinued Roads Commission will consider is legislation to require that where a town owns land on a road that’s maintained by a road association, the town must be a paying member of that association.

I don't know why you would want to exclude the town.  If you form as a statutory road association under 23 MRS section 3101, you MUST notify every owner of a parcel benefitted by the road, and that would include the town.  If you fail to notify them, your whole road association could be ruled invalid.  See Sunshine v Brett.  (There's a link on the Resources page.) 

But once you hold your first meeting and set up your bylaws, you could, if your members so vote, specify in your dues formula that public lands are exempt from dues.  OR, you could go ahead and bill them along with everyone else, either at the same rate or at a rate proportional to the public's use of the road. Your formula just needs to be "fair and equitable", which the Courts have taken to mean that what ever your formula is, it must be applied equally to everyone.  So you can have a formula that says all year round residents pay at one rate and all seasonal residents pay at another rate, as long as you bill everyone according to that formula rather than billing some people in one category as if they were in the other category.  Or you could have a formula that says all public lands pay at a different rate from privately owned lands.  If the town pays, great! 

If they don't pay, then it's up to your members to decide whether it's worthwhile to pursue payment or not.  At least if the public uses and damages the road at some point, you could decide to try to enforce payment.  I doubt if filing a Notice of Claim would have much effect, as that often only results in payment when an owner sells a lot that has a claim against it.  I don't know if it would kick in if the Town tried to borrow money, but it might.  But if public use really damaged the road, I believe you would at least have the right to file in small claims court to collect back dues, which then could be used to repair the damage caused by that public use.

There remains, of course, the question of whether it's constitutional to require private individuals to pay to maintain a public easement.  Section 3101 says you can.  As far as I know, no one has yet tried to challenge the road association laws on that issue.  I suppose someone could use a constitutional claim as grounds for not paying their dues, but all that would do is make it difficult for you to force them to pay, and you would have the same problem with a voluntary association.  At least if you name the Town as a member due to their ownership of land benefitted by the road, then the rest of your members would have the assurance that the town may be held liable for their share of wear and tear on the road.

Thanks for the comments advise.  Just hoping there was a magic bullet