Putting Public Roads to Bed in Maine

Putting Public Roads to Bed
in Maine
Abandonment vs.
Discontinuance Can the laws be
improved?

Aroostook County Hypo
Monument Road, Town of Amity
0.9 miles from this sign to the woodlot
Statutorily abandoned

Monument Road Example
Suppose the following:
Pay $75K for 100 ac with public road
frontage
Other, cheaper lots available but poor
access
Intend to harvest wood and keep in Tree
Growth
Five years later Amity abandons

Monument Road Hypo Continued
• Town retains free public easement
• Ready to harvest but road needs $20K
• Unable to justify
• Put on market for $55K
• Sell to snowmobiler for $45K
• Town saves money but owners out at
least $30K
• Unfair or just too bad for them?

Three Types of Roads
• 1. Town Way (town road)
• 2. Public Easement
• 3. Private Road

Why abandon?
• Save money – roads are EXPENSIVE

Three ways to dispose of roads
• 1. Section 3026 Discontinuance
• 2. Common Law Abandonment
• 3. Section 3028 Abandonment

Statutory Discontinuance
• 1. Road is town way or public easement
• 2. Notice given
• 3. Order filed that specifies
a. Location
b. Names of abutters, and
c. Amount of damages
Important: Public easement retained
Key: Damages may be found and paid!

Common Law Abandonment
• Non-use of public road for 20 years
• No public easement retained here!
• Entire fee interest reverts to abutters

Statutory Abandonment
• 30 years of non-maintenance (not use)
• Refers back to Discontinuance Statute
concerning public easement retention
• Get ready…
• Subject to vote to make the way an
easement for recreational use
• MMA Roads Manual: never been tested;
be careful; have an attorney

Statutory Abandonment
Cont’d
• Isolated acts of maintenance not enough
• Key: no provision for damages to
abutters

Problems?
• -Three different laws to do the same
thing
• - Constitutional issues
• - Takings
• - Lucas v. South Carolina Coastal
Council
• - Investment-backed expectations (Penn
Central Transportation Co. v. City of
NY)

These do not matter because:
• Maine Supreme Judicial Court says so
• Because lack of maintenance is not a
governmental action, there can be no
taking (govt is doing nothing rather
than doing some action)
• Do you agree?

Can’t the law still be made more
fair?
• Additional problems:
• Confusing recreational easement
language
• Liability issues
– Maine Landowner Liability Law
– Road damages
– Environmental violations

Aroostook County Hypo Again
• Under Common Law Abandonment:
• -Fee simple back to abutters
• -No easement retention
• -No damages paid
• -Public road has become private
property

Hypo under Discontinuance
• Town officials decide to discontinue
• Provide notice; file order with clerk
• Officials determine any damages and
amounts
• If after September 3, 1965 then public
easement retained (but damages might
be paid)

Hypo under Abandonment
Statute
• Road presumed abandoned if 30 years of
non-maintenance by Town
• If no party successfully rebuts the
presumption of abandonment then the
order stands (unless court rules no)
• Public easement automatically retained
• Remainder of property reverts to
abutters
• Does town mess with recreational
easement?

Hypo under Statutory
Abandonment
• Problem: Landowners now have to pay
to maintain what was a townmaintained
road at time of purchase
• And town retains an easement
• And no damages were paid to the
landowners
• Fair or too bad?

Proposed Changes to Law
• Possible Solution #1:
• Repeal 3028 and allow 3026 and
common law abandonment to operate
• Possible Solution #2:
• Repeal 3026 and 3028 and abrogate
common law abandonment and replace
with a new statute

Quick look at new statute
• Towns have two years to designate all
roads
• Landowners have two years to rebut the
designations
• Hearings held to settle arguments
• At end of four years, all determinations
final
• Use discontinuance statute going
forward

Final look at the hypo:
Under Solution #1
• Discontinuance and Common Law
Abandonment still operate
• No Common Law Abandonment here
because no lack to use
• No discontinuance because Amity never
discontinued
• Road still public
• Amity could choose to discontinue
(damages may be paid to abutters)

Under a New Statute
• Amity designates the stretch as a public
easement (abandoned)
• Proper notice given
• Public hearings held if needed
• Determination then becomes frozen
• Should Amity choose to add recreational
easement in future, must pay fair
market value

Conclusion
• Is the problem large enough to act?
• If so, go with simplicity and Solution #1
• Allow Common Law Abandonment and
Statutory Discontinuance to operate and
get rid of Statutory Abandonment

Thank you for listening!