ON THE ROAD AGAIN…
Often an emotional, politically contentious issue

(from Maine Townsman, March 1999)
by James Katsiaficas, MMA Senior Staff Attorney

MMA's Legal Services staff receives a large number of inquiries regarding road issues, particularly at this time of year. Road issues also seem to have generated a number of questions at MMA Elected Official Workshops. The good attendance and lively discussion on this subject at the Small Town Interchange during last year’s MMA Annual Convention confirmed the importance of road issues to municipal officials.

Veteran municipal officials will agree that road issues arise frequently and can create great political controversy. A new town resident may ask why the road to his or her house is not being plowed, graded or repaired (and often, this person will say that the deed — or the realtor — said that the road is a town way). It’s not uncommon for a resident to inquire why the municipality will not plow the road so that the school can add his or her child to the bus route. It’s not unheard of for a resident to ask the road commissioner for the town’s permission to post a way as a private road. In many cases, a local zoning or building permit ordinance requires frontage on a town way or public easement in order for a building permit to be issued, leaving municipal officials to puzzle over the status of a particular road when an application for a building permit is filed.

To help local officials address these questions, this article attempts to: (1) review basic road law and municipal liability for roads, and (2) suggest how municipalities may control and limit their liability for roads.

Basic Law and Municipal Liability

Types of Roads

Maine law recognizes three types of local roads: (1) town ways, (2) public easements (formerly called "private ways"), and (3) private roads. With regard to town ways, a municipality has the obligation to maintain the road to keep it "in repair so as to be safe and convenient for travelers with motor vehicles." (30-A M.R.S.A. 3651). As to public easements, the municipality has the right (with town meeting or council authorization), but not the obligation, to maintain these roads. A municipality has no right to spend public funds to maintain private roads. Expenditure of public funds on private roads would be for a private purpose and thus would violate a State constitutional requirement that public funds be spent for a public purpose. See Opinion of the Justices, 560 A.2d 522 (Me. 1989).

How Are Roads Created?

Knowing the four methods by which town ways and public easements may be created is helpful to an understanding of how municipal road obligations arise or might have arisen:

Dedication and acceptance. A person might dedicate land or an easement to pass over land to a municipality. Dedication might be either by gift or by the sale of lots shown on an approved and recorded subdivision plan (known as "incipient dedication"). The municipality’s legislative body may accept the gift of property and construct the road itself, or in the case of ways shown on subdivision plans, may accept the road after the subdivider constructs it in accordance with local road standards, if any. (23 M.R.S.A. 3025).

Purchase and acceptance. Here, the municipal officers offer, subject to approval by the municipal legislative body, to purchase the property rights necessary to establish a town way or public easement. (23 M.R.S.A. 3022 and 3023).

Eminent domain. In this instance, the municipal officers, after notice and hearing, vote to take certain property and to pay damages to the owners. The legislative body must approve the taking. (23 M.R.S.A. 3023).

Prescription. This occurs when the public uses a way in a manner similar to adverse possession for 20 or more years. (23 M.R.S.A. 3030).

How are Public Rights in Roads Terminated?

It’s also useful to review the four ways by which a municipality may terminate public road rights once these are created.

Common law abandonment. Under this judge-created doctrine, if the public ceases to use a way for a long period of time, the public rights in that way are terminated. Just how long the public must cease using a road in order for that road to be abandoned at common law, however, requires a determination by the courts on a case-by-case basis.

Statutory abandonment. To relieve some of the uncertainty that surrounds the question of whether a road has been abandoned at common law, the Legislature enacted a statute through which, if a municipality has not spent public funds for 30 or more consecutive years to keep a way or a portion of a way passable by motor vehicle, that way is presumed abandoned. 23 M.R.S.A. 3028. The municipal officers, after undertaking a review of the factual history and legal status of a way, may determine that the way is presumed abandoned. Thereafter, the municipality is not required to maintain that way (unless ordered to do so by a court) and is not liable for its failure to perform legal duties regarding that way so long as this determination is made in good faith. However, a party may file a lawsuit to rebut that presumption and to have the municipality ordered to maintain the way. These lawsuits are highly fact-dependent and can be both costly and time-consuming. Abandonment of the way has the same legal effect as discontinuance (discussed below); abutting owners own the road to the centerline and the municipality retains a public easement in the road.

Discontinuance. While abandonment simply happens by passage of time, discontinuance requires formal action by a municipality in accordance with 23 M.R.S.A. 3026. First, the municipal officers provide notice and hearing of intent to discontinue some or all of a way and at the hearing, determine whether damages should be paid to abutters. Second, the legislative body votes whether to approve the order of discontinuance. Upon approval of the order, ownership of the road passes to the owners of the abutting properties to the centerline of the way. Also, for discontinuances occurring after September 3, 1965, upon approval of the order, the municipality retains a public easement in the discontinued way unless the order states otherwise; prior to that date, a municipality retained a public easement in the discontinued way only if it was reserved in the order. After approval, the order must be recorded in the appropriate registry of deeds and any damages must be paid.

Vacation. This is a method for eliminating the right to accept a proposed town way — not to terminate an actual town way; a town way must be discontinued to terminate public rights in that way. Through the vacation process under 23 M.R.S.A. 3027 and 3027-A, a municipality may terminate the right to accept some or all of a proposed town way shown on an approved, recorded subdivision plan (a "paper street") that has not been accepted by the municipality. A municipality does so by action of the municipal officers after notice and hearing. Vacation may also require the payment of damages to abutters. Vacation usually requires the affirmative act of the municipal officers, but in some cases may occur by operation of law, without action by the municipality. In order to automatically terminate the rights of municipalities to accept paper streets shown on old subdivision plans where municipalities had never constructed or used and accepted those ways, the Legislature enacted 23 M.R.S.A. 3031-3032, which gave municipalities 10 years (from September 29, 1987 to September 29, 1997) within which to accept these older paper streets as town ways or else the public rights would be deemed vacated. These statutes were amended to allow municipalities to decide by September 29, 1997 whether to extend the time within which they may elect to accept those paper streets for an additional 20 years. (Please note that the vacation of a paper street only terminates public, not private, rights in the road shown on an approved, recorded subdivision plan.)

Municipal Responsibility (and Liability) for Roads

How a municipality creates and terminates public rights in a way is important because of the responsibilities and liabilities that accompany a municipality’s ownership of a road.

A municipality has two major responsibilities regarding town ways. As noted above, State statute requires a municipality to keep a town way "in repair so as to be safe and convenient for travelers with motor vehicles." (23 M.R.S.A. 3651). If a municipality fails to do so, three or more persons may petition the county commissioners to order the municipality to repair the way. If the municipality still fails to repair a town way after being ordered to do so by the commissioners, the commissioners may have the work done themselves and then bill the municipality for the cost of the work. (23 M.R.S.A. 3652, 3653). State statute also requires municipalities to keep town ways free of snow. (23 M.R.S.A. 3201).

Failure to carry out these responsibilities can lead to municipal liability. While the Maine Tort Claims Act generally makes municipalities immune from liability for their negligent acts and omissions, there are two exceptions that involve roads and road maintenance. One is road construction, cleaning and repair; if an injury occurs as the result of negligent municipal road construction, cleaning or repair operations, the municipality will be liable, even if the operations are performed by a private contractor. The other is the operation of vehicles; a municipality is responsible for the negligent operation of its motor vehicles, such as snowplows, graders and other road equipment. (14 M.R.S.A. 8104-A). Under this Act, municipal liability is capped at $300,000 or the extent of insurance coverage if greater than this amount.

Another source of municipal liability for town ways and certain state roads is the Highway Defect Act, or the "pothole law." (23 M.R.S.A. 3655). Under this law, the municipality is responsible for any personal injury or property damage up to the amount of $6,000 and for each death up to the amount of $25,000 ($300,000 per occurrence) resulting from a defect (e.g., a pothole, crack in the road or broken culvert) in a town way or State road that the municipality is responsible to repair where it had at least 24 hours’ notice of the defect.

Limiting and Controlling Liability

If failure to maintain a road can lead to liability, how can a municipality limit or control that liability? An effective method is for a municipality to appoint a standing "roads committee" which will prepare and maintain a thorough inventory of all roads within that municipality and for the municipality to review and implement as appropriate the recommendations of that roads committee.

Road Inventory

A road inventory is a single source of written information – in a notebook or on a computer disk – that provides municipal officials and the public with basic information regarding the legal status and physical condition of all of the roads in that municipality. Therefore, development of an inventory should involve an analysis of roads from two perspectives – legal status and physical condition. An examination of the legal status of a road will help to answer the question of whether a road is a town way, a public easement or a private road. An inventory of the physical condition of a road helps a municipality to determine maintenance and capital improvement needs. It also may help the municipality to decide whether, given the current legal status of a particular road and its condition, it should remain a public way, be closed to winter maintenance, be closed seasonally or be discontinued. If a particular road is a public easement, the municipality may wish to perform maintenance on it, but must first be authorized to do so by the municipality’s legislative body. If a particular road is a private road, the municipality shouldn’t be performing any maintenance on that road, regardless of its condition. However, there may be good reason for the private road to be dedicated (at the expense of abutting property owners) and accepted by the municipality as a town way or public easement. The municipality should constantly update the road inventory to ensure that it remains a useful tool for municipal officials and the public.

Performing the Legal Inventory

In the April 1991 issue of the TOWNSMAN, Senior Staff Attorney Joseph Wathen described the reasons for and process of conducting an inventory of the legal status of roads in an article entitled "Developing a Road Inventory." He noted that preparing and maintaining a road inventory should reduce the number of issues that arise over the status of roads and should make life easier for road commissioners, public works directors and municipal officers. That article emphasizes the following considerations when seeking information for a road inventory:

Examine the history of the road. Determine when the road was laid out as a town way or a public easement, whether the municipality has a record of its maintenance and whether the road has been discontinued. Review records (including town meeting minutes and annual report references to road repairs and appropriations) and maps in the town or city hall; records of town boards, such as the planning board and board of appeals; records and maps of the county commissioners (who often laid out and discontinued roads prior to 1976); municipal and county atlases; and information on file at the Maine Department of Transportation’s (MDOT) Maine Local Roads Center. These maps and records should determine when a road was established and if some or all of a road ever has been discontinued or presumed abandoned. Also, check recorded documents at the county registry of deeds to determine if any road layouts or discontinuance orders are recorded. In addition, review court records (particularly Superior Court records) regarding road litigation over the issues of discontinuance and abandonment and over property boundaries.

Conduct interviews of municipal employees and residents. Discuss roads with persons who served as road commissioners and highway workers during the relevant time periods. Obtain affidavits from former road commissioners and highway personnel regarding work done on roads, particularly if these people are growing old or are in failing health. Interview abutters to the road to determine what they might know about the road and maintenance performed on it. Information from abutters also will prove helpful if prescriptive use is at issue.

Agree upon and use a standard format to compile road information. This format should include at a minimum the name of each road, its legal status (town way, public easement or private road), width of road right-of-way and traveled surface, length, when road was established and whether the road or any portion has been discontinued or abandoned.

Conducting a Physical Inventory

To conduct a physical inventory, first contact MDOT's Maine Local Roads Center at 287-2152. The Center has computer software (the "Road Surface Management System") available to assist in preparing an inventory of the physical status of roads. The Center’s staff conducts workshops on the use of the Road Surface Management System. In addition, the Center has a collection of handbooks and videos on the subject of roads.

Who Should Serve On A Road Committee

Because the inventory process involves an examination of the physical condition of roads and the value of roads to the community as well as of the history of the creation and maintenance of roads, a road committee should consist of persons of various perspectives. A selectman or councilor, the public works director or road commissioner, members of the planning board as well as interested citizens (particularly those with transportation, construction, real estate, surveying or engineering experience) all would be valuable members of such a committee. Because the road committee also represents an opportunity for public input into what can be a divisive political matter, its membership should be representative of the interests of the entire community. The road committee may be established by order of the selectmen or council, by town meeting warrant article or by ordinance. Its role is advisory, but its research, conclusions and recommendations will be invaluable, particularly in municipalities that lack a public works department with the staff and resources to perform this task. (See Jo Josephson’s article "Establishing a Road Committee" in the April 1991 Maine Townsman for more information on this topic.) The road commission, as a committee formed under municipal authority to conduct public business, should be sure to follow the meeting and notice requirements of the Freedom of Access (or "Right-to-Know") Law (1 M.R.S.A. 401 et seq.).

What Does a Town do with the Inventory?

Once municipal officials understand the physical condition of a road and its legal status as a town way or public easement, the municipality can control its liability with the appropriate legal characterization of that road and with appropriate steps to maintain or repair it. For example, if a gravel town way is sufficient except during mud season, then a temporary closing under 29-A M.R.S.A. 2395 might be an appropriate remedy. If a road is passable but not in winter, and winter maintenance is neither desired nor possible, then closing the road to winter maintenance under 29-A M.R.S.A. 2953 would be appropriate. If a municipality no longer wants the responsibility to maintain a way that was properly laid out as a town way, then discontinuance under 23 M.R.S.A. 3026 would be appropriate. (However, if the municipality had not maintained that road for at least 30 consecutive years, then it might determine that the road has been abandoned and no maintenance is required; this determination, if made in good faith, would stand unless and until successfully challenged in court). It also may be necessary to use the Lost Boundary Statute (23 MRSA 2101) to define a road's boundaries.

In addition, the municipality may use the road inventory to address questions surrounding the repair and use of the road. If a municipality needs to improve certain town ways to meet its legal obligations, it may prepare a capital improvement plan (CIP) to prioritize and budget repair efforts. If it is unclear that a road is a town way or a public easement, but the municipality wishes to be able to maintain the road, then the municipality may lay out the road by purchase or eminent domain or may receive a dedication of the road from its owners, and may accept that road as a town way or public easement.

When a person requests a building permit for a structure on a road or asks the municipality to plow, grade or maintain a road, the municipality will have a handy reference book to determine whether to grant the request.

Conclusion

The history of many roads in Maine is convoluted, the inventory process will not always be a simple one and there may be instances where there is no clear answer, but this should not keep a municipality from attempting to inventory its roads. Understanding both the legal status and the physical condition of roads is essential so that municipalities can avoid making mistakes such as those one town made when the town meeting voted in one article not to close a road to winter maintenance, and then in the next article failed to fund the necessary repairs to make the road safe and passable for year-round traffic.

Resources and tools are available to conduct the inventory, and the information gained from such an inventory will be invaluable to municipalities both to limit their legal liability under the Tort Claims Act and the Pothole Law and to prevent local political disputes over roads from escalating out of control. MMA Legal Services and the MDOT Local Roads Center are available to assist your municipality in this process.