MARA members -- 

I'm asking road association folk to weigh in on this proposed bill in preparation for a hearing this legislative season. It's about whether the owner of a parcel benefitted by a road that is not its primary access should or should not be assessed by the road association.

Do any of you have experience with this situation, and what came out of it?? What do you think is fair and what isn't??

So --make your views a part of the debate. 

All best,

Betsy Connor Bowen, site admin.

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LD 537 Session - 128th Maine Legislature LR 1203 Item 1 Bill Tracking, Additional Documents Chamber Status

An Act To Provide an Exemption from Road Association Payments for Landowners Whose Primary Access Is Not over the Road

Be it enacted by the People of the State of Maine as follows: Sec. 1. 23 MRSA §3107 is enacted to read:

§ 3107. Exemption when nonprimary road access

Notwithstanding any other provision of this subchapter, an owner of a parcel of land benefited by a road that does not serve as the primary access route to the owner's parcel of land is exempt from all payments or assessments under this subchapter for repairs or maintenance relating to that road if that owner notifies the owners of all other parcels benefited by that road, prior to the determination by the road association to undertake the repair or maintenance, that the road does not serve as the primary access route to the owner's parcel of land. For purposes of this section, "road" means a private road, private way or bridge subject to the provisions of this subchapter.

SUMMARY This bill provides an exemption from road association payments for an owner of a parcel of land benefited by a private road, private way or bridge that does not serve as the primary access route to the land. The owner is exempt from all payments or assessments for repairs or maintenance determined to be undertaken by the road association as long as the owner notifies the owners of all other parcels benefited by the road, way or bridge prior to the determination by the road association to undertake the repair or maintenance.

I suggest that MARA testify against LD 537 and the Committee on Judiciary should vote “ought not to pass” ; the situation which LD 537 is intended to cover is not prevalent and does not need to be addressed with a new law.

The basis for assessing road fees from Title 23 (§3101) language that says “ land benefited by a private road” is key to the successful operation and survival of a road association formed under Title 23. If there is secondary access to a parcel and that secondary access point is entered from a [private] road, that parcel is benefited from the existence of that [private] road. If that [private] road has an organized road association managing its operation and maintenance, that “statutory” road association has authority under Title 23 to assess road maintenance fees to the owner of the parcel in question as may be voted.

I have two concerns with regard to this bill.  First, as others have said, how do you enforce the person not using the road at all as a secondary access?  Even if they don't use it as much as they use their primary access, as long as it still provides AN access, they may use it on occasion and therefore should contribute something. It could be put into the bylaws that properties for which the association road is a secondary access are assessed at a lower rate, but then you'd still have to determine what rate would be fair. 

23 MRSA 3101 subsection 5 states, "The determination of each owner's share of the total cost must be fair and equitable and based upon a formula provided for in the road association's bylaws or adopted by the owners at a meeting called and conducted pursuant to this section." 

So the owners are already permitted by law to agree on a formula under which lots which use another access as their primary access are assessed at a lower rate.  

This bill, on the other hand, would excuse the owner of the lot from paying anything at all.  The only way to be sure the person didn't actually use their secondary access would be to physically block entry onto the association road.  We had one member complain about having to pay dues when they owned a corner lot and could just as well enter it from the public road on the other side.  We told them they were welcome to put in another driveway entering from the public road and block off their entry from the association road, and we would not charge them dues.  They decided to just pay the dues, and have not complained since.

Of course, you could have a situation where there is a house lot with a driveway entering onto a different road, and no practical way to get a vehicle onto the property from an association road that abuts the lot in the back. Perhaps the back is wooded, or the association road is ditched so there is no possible vehicular entry from that side.  In that case I would argue that the lot does not actually benefit from the association road, and need not pay dues. But in light of Sunshine v Brett, I wouldn't count on the Court agreeing. 

Paragraph 14 of that decision states, "A parcel benefits from a private road if the parcel includes an easement creating a right to use the road." So if the lot has deeded access over the association road, clearly the Sunshine decision would say it's a lot that "benefits" from the road.  But if the lot merely abuts the road but nothing is mentioned in the deed about its having any easement or right to use the road, then it appears the Sunshine decision would not consider it a lot that benefits from the road.  Therefore I would think membership would not be required, and the procedure proposed by this bill would be unnecessary.  But I'm not an attorney.  If in doubt, you might want to get a signed agreement from the owner of the lot stating that they do not intend to use the association road, and that if at a future date they wish to install an entry from the association road, they would then be required to become a paying member.

Our road association does have one lot that has deeded access from two different roads, one on each end.  The owner objected to paying dues on the grounds that he had other access.  We told him if he would have his deed altered to remove the grant of access over the association road, and give us a letter of assurance that he would not use the association road, he would not be required to pay us dues.  As with the people on the corner lot, he decided to pay his dues.

My other concern about this bill is the impracticality of it, at least in some cases.  It might not be so bad where there are only a few members, but our road association has over forty members.  It has taken us years to track down some of them, due to properties having changed hands without notice, or having been taken on tax liens, or just having no response when we send letters to the owners listed in town tax records.  We have even had a couple that were sent certified letters, and they were returned "unclaimed." If a landowner must notify all members of the road association before being excused from paying dues, where will they get everyone's addresses?  Will the Road Association be required to give out their mailing list?  As a road association secretary, I would not feel comfortable doing that. So the landowner would have to figure it out on his own, which could take a good bit of time, effort, and expense.  And if he missed one member, (following the reasoning in Sunshine v Brett,) would that make his request void?

It's also unclear from this bill whether the required action grants permanent immunity, or whether the land owner is required to repeat the process each year before annual meeting.  All in all, I just don't think this bill is practical.

Let's see if I can reformat Richard Willey's post so it's readable to the right hand margin...

Dear Senator Lisa Keim, and Representative Matthew Moonen,Â

I regret that I will be unable to attend the Public hearing for LD537 on March 16, 2017 so I would like to make my views on this bill known in this email. I am a member of the Board of Directors of the Boulder Hill Road Association, a statutory road association in St. George, ME, and I believe that this bill will undermine the ability of a road association to raise funds for the repair and maintenance by owners of parcels benefited by that road. My major concerns are as follows:

The term “primary access route†is not defined in the current text for the purposes of this bill. It appears that the owner of a parcel of land in question (hereafter referred to as “claimant†) can unilaterally and arbitrarily declare that an alternate access route, existing or to be constructed, is the primary access route. This would nullify the claimant’s obligation to contribute to the maintenance and repair of that road. The bill provides no information as to how the process of determining, or challenging, the declaration of a “primary access route†by the claimant is to be accomplished.Â

The text suggests that the claimant already is a member of a recognized and properly organized statutory road association, and that the claimant has a right to use that road to access the property, by a deeded right-of-way (ROW) or some other legally recognized instrument. This ROW cannot be taken from the claimant by the road association, so even if that road is no longer the “primary access route†the claimant may still enjoy unrestricted use of that road (now for free). This bill would also hinder attempts to negotiate a settlement between the claimant and the road association, based on less usage, because the bill excuses the claimant from all future maintenance and repair costs.

This bill is detrimental to efforts that foster civic responsibility on the part of property owners, who benefit from that road, by contributing to maintenance and repair activities according to the bylaws of the road association.

This bill will not contribute to, or promote, achievement of Maine’s environmental protection goals which were the basis for enacting the original road association legislation (see: Introduction to Maine Department of Environmental Protection (DEP) publication “A Guide to Forming Road Associations†, http://www.maine.gov/dep/land/watershed/road_assoc_guide_2014 7-24-14.pdf , and Maine statutes Sec. 1. 23 MRSA §3101 through §3104, as revised).   Â

I request that the Committee on Judiciary vote “ought not to pass†on LD537.

Respectfully,

Richard Willey, Treasurer

Boulder Hill Road Association