Under 23 MRSA 3101, paragraph 1 B, "'Repairs and maintenance' does not include paving, except in locations where limited paving is demonstrated to be a cost-effective approach for fixing an erosion problem or to repair and maintain pavement existing as of July 1, 2007." 

Has anyone needed to address repair of pavement that was installed AFTER that date?  What options do we have under the law?  I've heard that in at least one case, a road association got unanimous consent from land owners to pave a section of road, with some residents voluntarily contributing extra to the effort.  But in a large road association, (around 50 members, many of whom do not use the section of road that needs repair,) getting unanimous consent seems highly unlikely.  Any suggestions?

Good suggestion - but unfortunately, I don't think it would work well in this situation.  Most of our year-round residents live on the first, older, section of pavement, which is holding up well.  They have no particular interest in what happens to the road beyond them.  Out of 55 members, I believe only 9 live on the extended, badly paved section.  Then there are a few more residents who live beyond the pavement, plus a number of unimproved lots.  I'm not sure any of those beyond the pavement would care if it all went back to being gravel.  Bottom line, I don't think there are enough people who really want or need the pavement repaired to get sufficient voluntary support. 

The developer who had a cheap paving job done (without even consulting anyone else on the road) so he could get a higher price for his lots, really left us in a quandary.  On the one hand, we are responsible for maintenance of the road.  On the other hand, is it fair to make everyone pay for something not everyone benefits from, especially in light of the restriction in the law?  The developer has sold all of his lots and is no longer in the picture.

I also wonder why that particular date was chosen for the law.  Was it to say that from that time forward, road associations were not to pave their roads?  Or was it to say that pavement should not be repaired at road association expense until it was at least a certain age, in which case the date should not have been fixed to one specific year?

Thanks for your input, Sandy.  I do like your idea of looking into "reclaim" as a possible cheaper alternative.  But we're still stuck with the date restriction in section 3101, so I'm still wondering what we are allowed to do under the law.

Not having spoken to many of the other members yet, I really can't guess how they will feel about the whole situation.  On the one hand, we could just say, "buyer beware" - those who bought on the outer paved section because they wanted to be on a paved road might have looked closer at what they were getting.  But one doesn't expect to have to examine what is under the pavement to see if it was installed properly!

It doesn't seem wrong to ask those on the outer paved section to contribute to maintaining the original paved section, because they all have to use that in order to access their properties.  And everyone on both paved sections as well as most of the gravel section receive snow removal.  But it doesn't seem fair to have to charge everyone more because a section of paving few of them need was put in badly.  I agree that the developer should be held responsible, but this was a person who never paid his dues until forced to by a sale of one or another of his lots.  I think it would be a battle to get him to do anything, and I'm not sure there is any law that would apply.

Our annual meeting comes up in August, and this will definitely be a point of discussion.  I just wish I had a clearer idea of what the law will allow us to do.

Anonymous wrote: 

I also wonder why that particular date was chosen for the law.  Was it to say that from that time forward, road associations were not to pave their roads?  Or was it to say that pavement should not be repaired at road association expense until it was at least a certain age, in which case the date should not have been fixed to one specific year?

I have been thinking about your questions. I believe the answer contained in your first question is essentially correct. This provision in the Private Ways Statute may be seen as an attempt to limit the paving of private roads after July 1, 2007, for environmental reasons.  Paving, of course, produces an impervious surface that forces storm water to travel downhill picking up surface toxins as it flows until it finds absorbent soil, a low lying area, or body of water. Pervious surfaces permit absorption or percolation of storm water allowing the immediate natural control of flow and removal of pollutants.

Since many of Maine's private roads traverse pollution sensitive watersheds to provide access to summer cottages on large bodies of water, limiting future pavement makes good sense. These environmental considerations may even help motivate your owners to return the damaged pavement to a pervious surface. The advantages (and disadvantages) of using pervious surfaces may be seen in the attachment. 

It might also be possible to convert the badly tarred section to "Reclaim" (a mixture of tar and gravel) in place. Our owners recently voted to have a Reclaim surface for its increased stability. We like it. Cost estimates would help in decision making. 

I recently asked a well-known heavy equipment contractor in the Bristol area about making “Reclaim” from existing asphalt pavement on site. He advised against this saying it was difficult to control the quality of the finished product particularly at the edges. Better to remove defective pavement and prepare the road base for the surface of choice.