By: Rudman Winchell Attorney Daniel Burke
Late last year, I wrote about a piece of pending legislation in the Maine legislature that would have brought changes to what many regard as a confusing statutory framework concerning the status of abandoned or discontinued roads throughout the State. The bill, LD 1177, was the result of a study by a stakeholder group put together by the Maine Department of Agriculture, Conservation and Forestry. That stakeholder group submitted its report in January 2013 along with proposed changes to Chapter 304 of Title 23 of the Maine Revised Statutes. However, the bill died between houses on April 8, 2014, despite a “ought to pass as amended” recommendation from the Committee on State and Local Government.
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 decisions affecting the status of a road to be made by the process of statutory discontinuance, including an affirmative vote by municipal officials to discontinue the road. Under the current framework, a public easement (essentially a right of the public to use the land underlying the discontinued road to continue to access land or waters not otherwise connected to a public road) was automatically retained. The stakeholder group recommended a switch that would require an affirmative vote by municipal officials to retain such an easement. If the municipality did keep an easement, they would be on the hook for repairs and maintenance.
Debate over this bill pitted landowners, particularly those owning land along discontinued or abandoned roads, against those who saw the changes as an increased cost to municipalities that could potentially be passed along to taxpayers in the form of higher property taxes. For better or worse, efforts to provide clarity have stalled and will need to be renewed in subsequent legislative sessions for any change to take effect.