(from Maine Townsman, June 1987)
by Gary C. Wood, MMA Staff Attorney
Increasing development pressure throughout Maine has led a number of municipalities to enact road design ordinances in an attempt to protect both property owners and the municipality. This article will discuss the nature of road design ordinances, their purpose, how to create them and some common problems that can be avoided by careful planning.
Road design ordinances are enacted by the municipality's legislative body. They require anyone who is constructing a road, as defined by the ordinance, to construct that road to certain standards stated in the ordinance. Their primary focus is normally on roads that will serve more than one dwelling unit. They usually do not apply to private driveways designed to serve only one dwelling unit.
Any municipality that has experienced a development that includes more than one dwelling unit that has to be served by a road is a good candidate for a road design ordinance. If such an ordinance is in place it will help the municipality avoid a fairly common problem throughout Maine which is the creation of a substandard road by a developer who then sells the property along the road and leaves behind a considerable mess for either the property owners or the municipality when the road begins to deteriorate. In this situation, the property owners may be able to sue the developers. The property owners have no legal right in most cases to require the municipality to take any action. Legal liability aside, the selectmen and other municipal officers will still receive calls at all hours of the day or night from disgruntled property owners who have a rapidly deteriorating road and no quick way to fix it except at their own expense.
In addition to avoiding an unfair economic burden to property owners, a road design ordinance helps the municipality avoid a similar economic burden when a substandard road is presented to the municipality for acceptance as a town way. Acceptance of a substandard road as a town way requires the town to bring the road up to a condition in which it is "safe and convenient" for the public to use, otherwise, the municipality faces the legal liability imposed by 23 M.R.S.A. § 3655 (the pothole law). Properly drafted road design ordinances require a developer to build a road correctly from the beginning. Correct construction assures the property owners along the road that they will have a good road to use and it also relieves the municipality of what can be a considerable financial burden if a substandard road is actually accepted by a vote of the municipality.
Another problem that a road design ordinance helps a municipality avoid is the problem of a contingent acceptance. While common sense might suggest that a municipality could accept a road as a town way so long as the road subsequently meets certain standards or conditions as it is being constructed, Maine Case law prohibits such a conditional acceptance. (State v. Calais, 48 Me. 456 (1860); Christ Church v. Woodward, 26 Me. 172 (1846)). This court-created restriction can create a problem in municipalities that have road standards ordinances. Since these ordinances require privately owned roads to be built to specific standards, a developer is often reluctant to build such a road unless they have some assurance in advance that the town will accept it as a town way. However, under current law no such assurance can be given. The final decision is up to the town's legislative body and the developer has to live with the possibility that the road will remain privately owned and maintained even if it is built to the standards prescribed in the road design ordinance.
One method that some municipalities have used to avoid the problem of required construction standard without a guarantee of town acceptance and the potential unfairness that could result if the town votes to accept one developer's road but not another's, is to delegate authority in their road design ordinance to a road approval committee. Once the developer has met the standards in the ordinance and the committee has made such a finding, then the road is accepted by the committee in behalf of the municipality. At that point it becomes a town way and the municipality has the legal responsibility to maintain the road. This solution rests on the doctrine of delegation of power and the road committee must be provided with precise standards in the road design ordinance in order to legally use the delegated authority. Since the committee's decision is binding on the municipality, the decision whether to make such a declaration of authority should only be made after a careful discussion of all the policies at issue when a road is presented to the town for acceptance.
Another policy decision that must be made is whether the ordinance requirements will apply to roads built by the municipality. If the ordinance doesn't exempt such roads, then the municipality, as well as private developers, has to comply with it.
As with any municipally enacted ordinance, a road design ordinance must be enacted in accordance with 30 M.R.S.A. §2153. That section and how to use it is described in detail in an appendix to Maine Municipal Association's Handbook for Local Planning Boards (1986 Revised Edition). Any municipality enacting any ordinance would be well advised to review that appendix or call MMA and ask for a copy of it if you have not yet purchased the Planning Board handbook.
Essentially Section 2153 requires that the final draft of the proposed ordinance be posted in the same manner as a warrant is posted calling a town meeting, i.e., it should be posted at least 7 days prior to the date of the vote on the ordinance in at least one conspicuous place in town. Common sense suggests that the ordinance should be posted in more than one place and probably advertised in newspapers having a large circulation in the municipality although such notice is not legally required. The individual who posts the attested copy or copies of the ordinance should also fill out a return on the original ordinance similar to the return on the warrant posted to call a town meeting. One copy of the proposed ordinance must be certified by the municipal officers to the municipal clerk at least 7 days prior to the election to be preserved as a public record. Copies must be available at that time for distribution to the voters by the municipal clerk as well as at the time of the town meeting. The municipality should not levy any charges for copies of the ordinance prior to its enactment. Subsequent to its enactment, copies must be available to the public at reasonable costs at the expense of the person making the request and the municipality must publish a notice of availability of the ordinance. Finally, the question on the warrant should be reduced to the following form, "Shall an ordinance entitled Road Design Ordinance for the Municipality of _______________________ be enacted?" That question can be submitted to the town meeting for action either in an open forum or as a question on a secret (preprinted) ballot. If the secret ballot method is used, the hearing requirements of 30 M.R.S.A. § 2061(4) must be met. That section requires that a public hearing be held at least 10 days prior to the day of voting and that the notice of that hearing be posted in the same manner required for posting a warrant at least 7 days prior to the date of hearing. That section also requires that the order to place a referendum vote on a secret ballot be delivered by the municipal officers to the clerk at least 35 days before the date of election. The purpose behind that requirement is to allow the clerk adequate time to prepare absentee ballots.
If the municipality will not be voting on the ordinance as a secret ballot question, there is no legal requirement that any hearing be held prior to the day of voting on the ordinance, however, it is strongly recommended that the municipal officers or planning board hold at least one if not more public hearings on the proposed ordinance before it is put into its final form. Such hearings provide the citizens a reasonable opportunity to have input into the creation of the ordinance and if the local municipal agency responsible for drafting the ordinance receives good suggestions at those public hearings, the proposed ordinance can be amended before it is posted. This fact is important because the ordinance cannot be amended from the floor of the town meeting at which it is to be voted upon. It must be asked in its entirety on a yes or no vote and in many municipalities the failure to allow an opportunity to discuss and amend a proposed ordinance prior to the day of voting has led to the defeat of an ordinance that was acceptable to the voters in most of its parts but that did have one or two problem areas that led the voters to reject the entire ordinance.
A road design ordinance should contain the same general sections that most municipal ordinances contain such as a title section, a purpose section, an application section, a definition section, a section requiring a permit, a severability clause, and an enforcement section. All road design ordinances should also contain a requirement that anyone who falls within the jurisdiction of the ordinance must post either a performance bond or an irrevocable letter of credit guaranteeing that the road will be built according to municipal standards. In order to inject some flexibility into the construction process, the road design ordinance can include a method for road approval that allows the road to be approved as each section is constructed in accordance with the road design standards. In other words, it may be beyond the scope of a developer to provide a bond or irrevocable letter of credit to ensure the proper construction of an entire road with an estimated cost of $200,000. It may also be difficult for a developer to build such a road if the road has to be built in its entirety prior to the time that any lots along the road can be sold. In such a case one flexible technique that can be used is to allow the road to be approved in sections and allow a developer to sell lots along the approved section only.
In addition to those standard sections, road design ordinance should contain both a road design standards section and a section imposing road construction standards. Both of these sections should articulate as precisely as possible the necessary design and construction criteria that the municipality wants to see in roads constructed by private individuals or corporations within the municipality. The reason for requiring both design and construction standards is to make certain that both the municipality and the developer agree on exactly how the road will be built before any construction starts. The municipality then has a clear plan against which to measure the actual construction. The design and construction standards should rest on a solid engineering and safety basis. MMA has an extensive bulletin, published in 1968, that does provide significant design and construction standards. MMA also has a model road design ordinance and a number of other ordinances from municipalities throughout the state. These ordinances vary in length from 5 to 20 pages but regardless of the length of any ordinance, it is critical that any road design or construction standards have a rational basis. Including arbitrary requirements or requirements that make no sense in a road design ordinance, or in any ordinance, only invites a losing lawsuit if the ordinance is challenged. MMA's model ordinance and its design standards and construction criteria are available upon request. The 1968 bulletin develops different criteria for municipalities over 1,500 and under 1,500 in terms of the types of roads necessary to serve the community. It also establishes a distinction among streets based on the expected volume of traffic on those streets. It breaks streets down into the following classifications: arterial, collector, residential, commercial, and rural. While such distinctions may not be necessary in most municipalities, it is a good idea to vary the road design and construction standards in relation to the expected volume of traffic that those roads will bear. For example, it does not make sense to require a 60-foot wide right-of-way with a 22-foot paved section on a road that will only serve three dwelling units. On the other hand, it would be just as foolish to allow a developer to provide a 40-foot right-of-way with a 15-foot paved portion in a development that is going to serve 50 dwelling units.
In creating the ordinance one legal concept that should be carefully reviewed is the concept of incorporation by reference. That topic is specifically addressed in 30 M.R.S.A. § 2156 in relation to specifically identified codes. While none of the specifically identified codes relate to roads, the term "code" is defined to include any rules or enforceable standards prepared by any department or agency of the federal government or the State of Maine, so that a municipality that wishes to incorporate by reference any standards created by the Maine Department of Transportation would have to comply with Section 2156. In essence that section requires that in order to legally incorporate any code, or portion of a code or amendment, at least 3 copies of the code or governmental regulation must be filed in the office of the clerk of the municipality and kept there for public use, inspection and examination at least 30 days prior to the adoption of the ordinance which incorporates the code or regulation. If the code or regulation has been promulgated by a regional agency, such as a regional planning commission or council of governments, the adopting municipality must be within the territorial boundaries of the agency. One other limitation on the adoption of a code or regulation by reference is that any penalty provision which the municipality wants to use that is contained in the adopted code or regulation must be separately stated as part of the adopting ordinance. Finally, in order to be technically correct the adoption of any code or regulation must clearly identify the title of that code or regulation, the date upon which the adopted code or regulation was put into effect or promulgated, and the source that promulgated it.
As a general rule of thumb, whether the code or regulation being adopted falls within the definition of Section 2156 or not, it would be advisable to follow the above guidelines in adopting any standards or criteria from another source. One particular problem to be avoided is a general adoption of the road construction standards created by the Maine Department of Transportation. Those standards are contained in a book of several hundred pages that is far too complex and broad to be useful in its entirety in the context of a municipal road design ordinance. Certain sections of DOT's handbook may be incorporated by reference in a useful way but to incorporate the entire handbook will render the municipal ordinance useless as there will be no way to determine which standards and criteria are applicable to a road falling within the definition and jurisdiction of the road design ordinance.
Another problem that haunts a number of local ordinances, including road design ordinances, is that individuals unintentionally violate those ordinances because they are not aware of their existence. One way to lessen the likelihood of unintentional noncompliance is to publish a notice on a regular basis, and at least once a year in the municipality's annual report that identifies all of the local ordinances that are in force and effect and what type of activities those ordinances generally cover. Municipalities that wish to go further down the notification path may want to send a letter containing the same information to anyone who purchases property within their municipality. Finally, it makes sense to integrate all development ordinances with a building or construction permit ordinance so that an individual who applies for such a permit will be put on notice at a reasonably early point in time of other local requirements, such as road design requirements.
In conclusion, road design ordinances serve a very useful municipal purpose in that they protect both the municipality and its financial resources from being overburdened by unscrupulous developers and they also protect citizens in the municipality from having to live with and correct substandard private roads.
Recent Zoning Decisions, by Rebecca Warren Seel
A York County Superior Court justice has held that projects such as apartment buildings, shopping centers, and condominiums which contain three or more units constitute subdivisions for the purposes of the State Subdivision Law (30 M.R.S.A. § 4956, even if all the units are contained in a single building. Town of York v. Camplin, Super. Ct. York Cty, Docket No. CV-86-632 (May 15, 1987). Justice Arthur Brennan found that such projects create a "functional division of land" for the purposes of the definition of "subdivision" in 30 M.R.S.A. § 4956(l). This decision expressly overrules an earlier decision by Justice Brennan involving condominium units, Grand Beach Association, Inc. v. Town of Old Orchard Beach, Super. Ct., York Cty, Docket No. CV-84-610. The MMA legal staff is now waiting to hear whether this case will be appealed to the Supreme Court.
The Maine Supreme Court recently decided another case involving standards of review for conditional uses/special exceptions in a zoning ordinance, Wakelin v. Town of Yarmouth, -- A.2d -- (Me. 1987) (Decis. No. 4403, March 31, 1987). The specific standard being challenged by the applicant directed the appeals board to find that "the proposed use will be compatible with existing uses in the neighborhood, with respect to physical size, visual impact, intensity of use, proximity to other structures and density of development." The court held that this standard did not "come up to the level of specificity required to pass constitutional muster," noting that it failed to "articulate the quantitative standards necessary to transform ... unmeasured qualities ... into specific criteria objectively usable by both the board and the applicant in gauging the compatibility of a proposed use. . . "This decision has a far-reaching effect on other types of standards of review. The court's focus on the need for "quantitative standards" is applicable to any type of ordinance which requires a local board or official to approve or deny a permit for some sort of land use activity. Over the next few months a group of municipal attorneys and planners will be attempting to develop sample standards and general recommendations regarding ways for communities to comply with the Wakelin decision. This case goes much further than other Supreme Court cases described in earlier issues of the Maine Townsman - Cope v. Town of Brunswick (see Legal Note, December 1983 issue of the Maine Townsman) and Chandler v. Town of Pittsfield (see Maine Townsman article, March 1986 issue). (RWS)