Local Road Laws ‘Tweaked’

Training for: Legal Notes

The Legislature has made a handful of relatively minor changes to the laws governing the discontinuance and abandonment of town ways, to ensure a more public process (see PL 2015, c. 464, eff. July 29, 2016).

First, the municipal officers (selectmen or councilors) must hold a public board meeting to discuss any proposed discontinuance. If they decide to proceed with the discontinuance, they must file an order of discontinuance with the municipal clerk that includes certain information (e.g., location of the way, names of abutters, amount of damages, etc.). Then they must hold a public hearing on the discontinuance at least 10 days before the municipal legislative body (town meeting or town or city council) votes on the discontinuance. If approved the clerk must record an attested certificate of discontinuance in the registry of deeds and provide a photocopy to the Maine Department of Transportation. (For the record, the law on retention of a public easement after discontinuance remains unchanged: Unless explicitly stated otherwise in the order, a public easement is automatically retained.)

Second, if the municipal officers determine that any town way has been discontinued by abandonment (by at least 30 consecutive years of no maintenance at public expense), they must file a record of their determination in the registry of deeds. Also the clerk must provide a copy to the MDOT. (Failure to file in the registry cannot be construed as evidence against abandonment, however.)

Third, municipalities are authorized and encouraged (but not legally required) to develop or update public inventories of all known roads, including those that have been discontinued or abandoned, and to share these inventories with the MDOT.

Finally, any abutter to a discontinued or abandoned road may sue anyone who damages a public easement in a manner that impedes reasonable access to the abutter’s property by motor vehicle. Relief may include money damages, an injunction, and attorney fees and court costs. Law enforcement officers and emergency responders are exempt. (Damaging a public easement is already a Class E crime, see 17 M.R.S.A. § 3853-D.)

For more on the discontinuance and abandonment of town ways, see MMA’s Municipal Roads Manual, available free to members at www.memun.org. (By R.P.F.)

The Legislature has made a handful of relatively minor changes to the laws governing the discontinuance and abandonment of town ways, to ensure a more public process (see PL 2015, c. 464, eff. July 29, 2016).

First, the municipal officers (selectmen or councilors) must hold a public board meeting to discuss any proposed discontinuance. If they decide to proceed with the discontinuance, they must file an order of discontinuance with the municipal clerk that includes certain information (e.g., location of the way, names of abutters, amount of damages, etc.). Then they must hold a public hearing on the discontinuance at least 10 days before the municipal legislative body (town meeting or town or city council) votes on the discontinuance. If approved the clerk must record an attested certificate of discontinuance in the registry of deeds and provide a photocopy to the Maine Department of Transportation. (For the record, the law on retention of a public easement after discontinuance remains unchanged: Unless explicitly stated otherwise in the order, a public easement is automatically retained.)

Second, if the municipal officers determine that any town way has been discontinued by abandonment (by at least 30 consecutive years of no maintenance at public expense), they must file a record of their determination in the registry of deeds. Also the clerk must provide a copy to the MDOT. (Failure to file in the registry cannot be construed as evidence against abandonment, however.)

Third, municipalities are authorized and encouraged (but not legally required) to develop or update public inventories of all known roads, including those that have been discontinued or abandoned, and to share these inventories with the MDOT.

Finally, any abutter to a discontinued or abandoned road may sue anyone who damages a public easement in a manner that impedes reasonable access to the abutter’s property by motor vehicle. Relief may include money damages, an injunction, and attorney fees and court costs. Law enforcement officers and emergency responders are exempt. (Damaging a public easement is already a Class E crime, see 17 M.R.S.A. § 3853-D.)

For more on the discontinuance and abandonment of town ways, see MMA’s Municipal Roads Manual, available free to members at www.memun.org. (By R.P.F.)