By: Rudman Winchell Attorney Daniel D. Burke
The concept of abandoning and discontinuing a public road may seem like a simple one, but the current law on this topic, Chapter 304 of Title 23 of the Maine Revised Statutes, has resulted in significant confusion. As property owners and municipalities seek solutions and a clarification of their respective rights and responsibilities, a new legislative fix may be in the works. Last fall, the Maine Department of Agriculture, Conservation and Forestry convened a stakeholders group to discuss key issues and give recommendations to the 126th Legislature for consideration in the current legislative session. A final report was submitted to the Joint Standing Committee on State and Local Government on January 15, 2013 and proposed legislation, LD 1177: An Act to Implement the Recommendations from the Discontinued and Abandoned Roads Stakeholder Group, was introduced.
Under current law, municipalities have three ways to extinguish their rights in a road. First, under common law abandonment, a municipality can deem a road abandoned if it has not been used by members of the public for 20 years or more. A public easement, meaning a right to use the land underlying the old road by members of the public to access land or water not otherwise connected to a public way, is not retained. Second, under statutory abandonment, a presumption of abandonment arises if a municipality has not maintained the road for 30 years or more. Under statutory abandonment, a public easement is automatically retained. Lastly, statutory discontinuance requires an affirmative vote by municipal officials. If the officials vote to discontinue, a public easement is automatically retained, including one for the installation and maintenance of public utilities.
Once a road is abandoned or discontinued, the municipality no longer has a responsibility to maintain it, even if a public easement is retained. Generally, the land underlying the easement reverts back to the abutting landowner. If the former road was that landowner’s sole means of access, they must maintain it at their own expense. However, members of the public may also continue to use it with little restriction, many times with little regard for weather conditions or common decency. This use by the public can lead to costly repairs and even environmental compliance issues that the landowner could ultimately be responsible for.
Among the recommendations that the stakeholder group proposed was a repeal of statutory abandonment and a disavowal of common law abandonment, essentially requiring any future decision affecting the status of a road to be made by the process of statutory discontinuance with an affirmative vote by municipal officials. It also recommended that a public easement only be retained if officials affirmatively vote to do so. If the officials do vote to retain a public easement, the stakeholder group recommended that the municipality then be required to assume liability and responsibility for the easement, including maintenance. If the municipality fails to maintain it for two consecutive years, it was recommended that the public’s interest be automatically extinguished.
With a little over one month remaining in a busy legislative session, LD 1177 remains in committee pending further work sessions. Time will only tell how the bill is received in committee and/or the full Legislature. Stay tuned for future updates.