Regulation of Town Roads

Maine Townsman - January, 1982

Please Note: Despite this article’s original publication date, it remains a valid resource on the

relevant subject matter. Recent cases and statutory changes are noted to reflect current law.

(9/98)

Question: What will be the effect of the New State Road Assistance Program on municipal

regulation of weight limits and seasonal closing on those roads turned over to the municipality?

cannot sustain heavy loads.

The state law which sets weight limits and governs the enforcement of those limits is applicable

to town ways. See 29 MRSA §§ 1652 and 1656 to1656 [Repealed] generally.

Although local law enforcement officials can conduct enforcement operations, the complexity of

the weight law and the need to actually weigh a vehicle suspected of being overweight combine

to suggest that enforcement operations be left to the Maine State Police. The State Police have

considerable experience enforcing the weight law and have seven portable and semi-portable

weighing units which they use throughout the state on both state and town roads. Any

year-round basis. In some cases, a municipality may want to close a road to commercial traffic.

Title 30 MRSA § 2151 generally authorizes a municipality to enact police power ordinances and

paragraph 3(C) of that section grants the municipal officers of towns the exclusive power to

enact ordinances regulating the operating of all vehicles in the public way and on publicly owned

property. (See Townsman Nov. 1979, Legal Note, for the procedure required to enact traffic

ordinances.) Paragraph 3(C) further provides that . . .

"Seven days' notice of the meeting at which said ordinances are to be proposed shall be given in

the manner provided for town meetings and such ordinances shall be effective immediately. A

is carefully designed to prevent damage to such roads.

Another protective technique available to municipalities is seasonal closings. Title 29 MRSA §

902 [Repealed. Authority of municipal officers to enact ordinances currently found at 29-A

M.R.S.A. § 2395.] authorizes municipal officials "to promulgate such reasonable rules and

regulations as in their judgment may be necessary to insure the proper use and to prevent abuse

of all highways under their maintenance or supervision by motor driven and animal drawn

vehicles during such seasons of the year as said highways require such special protection. These

rules and regulations shall be kept on file." In our opinion such rules and regulations should be

passed in the form of an ordinance and according to the procedure noted above in Title 30

prescribed restrictions or exclusion shall be conspicuously posted at each end thereof ." DOT has

such notices available for use by municipalities.

The opinions printed above are written with the intent to provide general guidance as to the

treatment or issues or problems similar to those stated in the opinion. The reader is cautioned not

to rely on the information contained therein as the sole basis for handling individual affairs but

he should obtain further counsel and information in solving his own specific problems.

Developing a Road Inventory

Maine Townsman - April, 1991

isn't fixed soon, their lawyer will sue the town.

This situation causes aggravation and confusion in the town office, since no one is sure how to

quickly determine the town's legal rights and responsibilities with respect to a particular road or

street. The municipal officers are called on to determine the status of the road, and they need the

answer as soon as possible.

One way to deal with this situation is to develop and maintain a "road inventory," which is a

book (or computer disc) containing information needed to answer legal questions about roads. A

road inventory can also be kept for physical maintenance purposes (which roads need what

Why have a road inventory? The goal of a road inventory is to reduce problems and arguments

associated with roads. In other words, it should make it easier for the selectmen or road

commissioner to determine the status of a road and respond to questions from the public. By

collecting and compiling all road-related information into a single volume or disc, you can

provide quick and accurate answers to what may now be thorny and time-consuming questions.

State law does not require that a road inventory be kept at all. Many towns keep an informal

inventory, while others rely only on the road commissioner's memory for guidance. The

drawback with this is that, when the road commissioner goes, so does all your information. It is

much better to have that information available in writing for future use, so that you need not "re-

would provide that information quickly and succinctly.

2) An inventory helps municipal officials plan for the future. For example, the town has 50 miles

of roads which have fallen into disrepair, and the selectmen want to know whether they can

discontinue or abandon those roads The information needed to decide this could be found in the

road inventory

3) To provide information relating to the town's legal liability (for potholes, defects, accidents

questions, so the inventory should contain at least the following basic information: name of road,

its status (as either a town way, public easement, or privately-owned road), its width including

the right of way, approximate length, and a designation of whether it was ever abandoned or

discontinued. It may also be useful to take a town map, block it into numbered grids, and give

each road a grid reference for easier location.

An inventory can contain as much information as is considered useful. For example, it could

identify buildings, driveways and culverts along a particular road, it could state whether a road is

posted or closed in the winter, or it could indicate whether the town owns the road in fee simple

or by easement only. The inventory should refer to deeds, surveys, maps or other documents if

status of road, and other pertinent information. An alphabetical listing of roads is most

commonly used and is well-suited to updates and new listings. Information which is too bulky to

fit on the chart can be kept elsewhere and referenced in the chart. For example, if you have a

deed describing the road by metes and bounds, or a record of the town's acceptance of the road,

these documents could be referred to by book and page number, or by the year of the town report

where the full text can be located. This would allow the user to find the full text of the document

without cluttering up the inventory.

How is the road inventory actually created? This will require a joint effort by municipal officials.

One person can be in charge of putting information into a book or onto a disc, but getting that

information will always be added or deleted. Once an inventory is started, it will be less work to

maintain and update it.

In some cases, information will be missing or incomplete. The inventory should refer to notes

that reflect what was found and not found, and the scope of the search. This will save some other

official from wasting time on a fruitless search, and it may also help an official make a decision.

For example, if there is a question about whether a road is abandoned, and the selectmen look

back over fifty years' of records and find no evidence of regular maintenance, they could deem

sources. First and foremost, look at past Town Reports for references to particular roads or the

budget for roads. This may answer questions about what maintenance, if any, has been done over

the years. Likewise, Town Reports should contain articles about accepting or discontinuing

roads. The vote on the article may appear in the Report, or be found in the Clerk's minutes for

that town meeting. Also, look for any notes or records from past Selectmen's meetings as well as

those kept by former road commissioners.

A second source of road information is the public. Longtime residents or former municipal

officials may remember what was done (or not done) on particular roads. Likewise, developers

putting in new roads will usually have good information —surveys, deeds, and the like—about

the records of a case before the Planning Board or Board of Appeals may contain road

descriptions, deeds, surveys, agreements or other evidence useful in the road inventory.

Records from the county or state governments may also be useful, particularly since many town

ways were at one time state or county roads. Records in question include maintenance reports,

discontinuance actions, surveys and deeds, and road budget documents. The town may find

information which establishes that a road was discontinued at the county level and never became

a town way.

The Registry of Deeds is the central source of recorded information. This includes deeds, plats

refer to the boundaries or legal status of a road, even if the case itself involved a different matter.

Obviously, if a case concerns the status of a road specifically, the Court's decision should be

noted in the inventory

What is the process for determining the status of a road? The municipal officers (selectmen or

councilors) are responsible for making the initial determination of a road's status A final

determination can be made only by a judge.

affidavits if the information is a person's recollection.

Once a decision as to the road's status is made, any person opposing that decision will have the

burden of producing evidence in rebuttal. That person will have to go to court for a final decision

unless the municipal officers are convinced otherwise by the new evidence.

What are the rules about road status? The goal is to determine whether a road is a town way,

public easement, or privately-owned road. The following is a list of general legal principles in

this regard:

this may be in town reports or from residents' recollections.

Discontinuance: formal town action is required to discontinue a road. Records of a

discontinuance will be recorded in the Registry, and should be found as well in the minutes of

the annual or special town meetings of the years in question. Review these records carefully to

make certain that the procedure was done in accordance with the laws in effect at that time. The

laws have changed over the years and present law may require something not required when the

discontinuance took place.

Abandonment: abandonment occurs without formal action of the town. What is required is that

For more details on the legal principles governing road status, see MMA's Municipal Roads

Manual and see Title 23, Maine Revised Statutes Annotated (the State law).

What does the road inventory not do? A road inventory should not be considered the final word

on road-related questions. The inventory is a guide to make better decisions, but only a Court can

make final and binding decisions with respect to legal rights and obligations With a good

inventory, however, you may be able to keep a dispute from going to court. Even if litigation

occurs, a road inventory saves time and legal fees by providing information quickly.

Suggestion: See the February 1998 Maine Townsman for a Legal Note on this subject ("Road

Weight Limits/Seasonal Road Closings"). The article summarizes the two legal options and

refers the reader to two other valuable resources: MDOT’s Maine Local Roads Center (287-

2151) and MMA’s "Information Packet" on road weight limits and seasonal road closings. Our

packet includes, among other things, an excellent sample ordinance for restricting vehicle weight

on posted ways.

Law Court Road Case Not News

Maine Townsman - February, 1999

Media reports last month that the Maine Supreme Court had signaled a sea change in local road

1977, was ineffective as to the abutters because the Town had not given actual notice to them or

recorded a certificate of discontinuance in the registry of deeds, as the law (23 M.R.S.A. § 3024)

has long required. One reporter wrote that the decision "puts municipal officials on notice that

before they abandon (sic) a road, they must notify every property owner." Not so. This part of

the decision dealt with discontinuance, not abandonment, and municipalities continue to have the

statutory option of either giving actual notice or recording a certificate.

The press also said of the case, "The Supreme Court decided that even occasional road

maintenance prevents the town from later claiming it can abandon the road out of convenience."

Again, not so. The Court did reject the Town’s claim of abandonment, but not because of

abandonment one iota. (By R.P.F.)

Designating Public Ways to 'ATV-Access

Routes'

Maine Townsman - May, 2005

Question: We’ve been asked by some ATVers to open some of our local roads to ATV use. May

or must we?

Answer: You may, but you are not required to do so – the discretion rests exclusively with the

route,” provided they determine that ATV travel on the extreme right of the way “may be

conducted safely and will not interfere with vehicular traffic,” and provided further that the way

is posted conspicuously at regular intervals with highly visible signs designating the access route.

Whether or not the municipal officers designate a municipal road as an ATV-access route is a

completely discretionary matter. (If they do so, however, they must first make the required

determination about safety and vehicular traffic, and they must provide for the required signage.)

The law does not require them to designate any access routes at all. On the other hand, if they do

so and someone is injured as a result, neither the municipality nor its officials or employees can

be held liable because the Maine Tort Claims Act provides complete immunity from liability for,

ATVs & Public Ways

Maine Townsman - July, 2007

All-terrain vehicles (ATVs) generally may not be operated on public ways except under certain

designated an ATV-access route.

The public of course may attempt to influence their decision, but the municipal officers' choice is

not delegable to or subject to override by the voters. When it comes to regulating the use of local

roads, the municipal officers are in the driver's seat regardless of the municipality's form of

government.

It also bears repeating that while factors such as safety, noise and dust may be legitimate

considerations in making such a decision, potential liability is not. Under the Maine Tort Claims

of ATVs on private property) except on municipal property and rights of way held by the

municipality (see "Municipal Regulation of ATVs Preempted by State," Maine Townsman, July

2003). (By R.P.F.)

vehicles and the spring thaw. There are two legal options for doing so, and both belong

exclusively to the municipal officers.

First, 29-A M.R.S.A. § 2395 authorizes the municipal officers to adopt "rules" for temporarily

closing or restricting vehicle weight on local roads "whenever those ways require special

protection." Then, as necessary, the municipal officers may designate those roads or portions of

roads that are to be closed or restricted. Notice of the designation must be posted at each end of

the road and must specify the period of closing and the restrictions. The Maine Local Roads

Center (287-2151), an office of the MDOT, Technical Services Division, has an excellent

publication on this topic entitled "Heavy Loads and Local Roads in Maine" and an

conspicuous public place, with a return). MMA’s Legal Services has a free "Information Packet"

fire trucks, ambulances, school buses, etc.) or for vehicle owners who have a demonstrated need

to use a posted road and who have tendered a bond or other security to cover the cost of any

damage they may cause. There is no legal obligation to make such exceptions, however, and they

should probably be granted sparingly, depending on the particular circumstances.

(By R.P.F.)

The statutory process is available only if the road serves at least four parcels and at least three of

these parcels are owned by different persons. It authorizes at least three of the owners to petition

for a meeting, called by a warrant issued by a notary, to choose a road commissioner, approve a

budget and assess costs among the owners. Assessments may be collected either by suit or in the

same manner as taxes are collected (by lien). However, this process is available only for repairs

and does not include improvements such as paving or routine maintenance such as snowplowing.

There is no legal authority for municipalities to plow or otherwise maintain private roads at

public expense. In fact, it’s a violation of the Maine Constitution and a risky practice in terms of

For more on this subject, see Chapter 5 of MMA’s Municipal Roads Manual, available free of

charge to members on our website at www.memun.org. (By R.P.F.)

(1) the road is within the watershed of a great pond, (2) the great pond is identified by the

Department of Environmental Protection (DEP) as at risk, threatened or impaired, (3) the DEP or

the municipality has determined that the road is contributing to degradation of the great pond’s

water quality, (4) the repair complies with the DEP’s best management practices, and (5) the

road is maintained by an organized private road association.

A “great pond” is an inland water body with a surface area greater than 10 acres in its natural

state or, if artificially formed or increased, with a surface area greater than 30 acres (see 38

M.R.S.A. § 480-B(5)). Since great ponds are public property and their protection is deemed to be

a public trust (see 38 M.R.S.A. § 1841), the use of public funds to repair a private road to prevent

(see above).

The new law is an exception to the general rule that maintenance or repair of private roads at

public expense is illegal (see “Plowing Private Roads & Driveways Revisited,” Maine

Townsman, “Legal Notes,” November 2003).

The new law is found at 23 M.R.S.A. § 3106. (By R.P.F.)

Question: We’ve heard that if a municipality has been plowing a private road for a certain

number of years, it must continue doing so. Can this be true?

Answer: We sometimes hear this too, but it is not and never has been true. Plowing or otherwise

maintaining private roads at public expense is a violation of the Maine Constitution’s “public

purpose” clause, which requires that public funds be expended only for public purposes (see

Opinion of the Justices, 560 A.2d 552 (Me. 1989)). There is no statute, case law or legal theory

to support the claim that plowing a private road for any period of time somehow obligates a

unless and until suit has been filed and a court declares it so. Second, a prescriptive easement

cannot gain access to persons or property due to snowbound roads, the municipality can be held

liable. This of course is nonsense. Municipalities have no legal duty to ensure access to private

roads. Those who live on private roads but neglect to maintain them do so at their own risk.

For more on why plowing private roads is both illegal and inadvisable from a liability standpoint,

see “Plowing Private Roads & Driveways Revisited,” Maine Townsman, Legal Notes,

November 2003. (By R.P.F.)

Road Commissioners' Duties

Maine Townsman - September, 1985

Question: We understand that the Legislature passed a law to clarify the relationship between

municipal officers and the road commissioner. How will this change the situation?

Answer: The authority of municipal officers over road commissioners often has been a source of

conflict. The conflict is due in part to the fact that while municipal officers and the road

commissioners are both elected, the selectmen have final authority on road work on town ways,

duties and responsibilities of the road commissioner shall be made by a majority of the selectmen

whose decision shall be final.

The law grants the road commissioner the authority to employ the necessary personnel and

equipment and purchase needed material for the road work. Thus the relationship between the

selectmen and the road commissioner is very similar to that between the selectmen and the town

manager: the selectmen make policy and the road commissioner implements it.

The selectmen determine what road work must be done and set the number and qualifications of

the road crew; the road commissioner administers the board's directives (i.e., hiring, setting a

the new law provides a degree of remedy by empowering the municipal officers to act to correct

a safety problem if the road commissioner fails to act. If a majority of the selectmen determine

that a condition exists in a town way which creates a hazard, the selectmen must give written

notice to the road commissioner and order him or her to eliminate it or take interim measures to

protect the public within 24 hours. If the road commissioner fails to act as directed, a majority of

the selectmen may take any steps necessary to eliminate the hazard.

Finally, the law requires that the road commissioner be bonded to the satisfaction of the

selectmen and be responsible to them for the expenditure of money and the discharge of his or

her duties generally. The legislative body must provide for the road commissioner's salary. The

expenditure or before incurring a binding obligation in the performance of their duties.

Following this procedure would give the selectmen a certain amount of control over categorical

expenditures to ensure that they were being made in accordance with the overall policy

guidelines established by the selectmen.

It may be worthwhile for your municipality to develop administrative guidelines that clearly

outline the duties and relationship between the selectmen and the road commissioner. MMA has

a model policy which is contained in its Municipal Roads booklet, which covers several other

aspects of the road commissioner's responsibilities and other road-related issues. The booklet

may be obtained by contacting MMA's legal secretary.

Prescriptive Easements for Public

Maine Townsman - October, 2002

sued after a church camp blocked access to a road across its 150-acre wooded property. There

acquiescence will be presumed – only the fourth (adverse use) was in dispute. A use is adverse

where, without permission, someone uses property the way the owner would, disregarding the

owner’s claims entirely.

The Court noted that in the case of a private prescriptive easement, the use is presumed to be

adverse if it has been open, known and continuous for at least 20 years. But where a public

easement is claimed, a rebuttable presumption of permissive use arises because, in the majority’s

view, the public recreational use of unposted fields and woodland has long been considered

permissiveness, which it said had heretofore applied to all uses of wild and uncultivated lands

regardless of the nature of the use. Whether the majority’s opinion in fact alters the traditional

presumption of permissiveness, or whether it will henceforth be easier for non-recreational and

even commercial users to acquire public prescriptive easements over private land, as the dissent

suggested, remains to be seen.

Meanwhile, readers should note that, with one exception (23 M.R.S.A. § 2952, the “longtime

buildings and fences” law), Maine law holds that it is legally impossible to acquire private rights

to public property by prescriptive use or adverse possession. (By R.P.F.)

Maine Townsman - February, 2003

The Maine Supreme Court has reaffirmed the longstanding common law principle that one

cannot assert a claim to municipal property by adverse possession or prescriptive use.

In Loavenbruck v. Rohrbach, 2002 ME 73, the plaintiffs claimed title to a portion of the

could not be included within the 20-year period necessary to prove adverse possession because

acquired property are often subject to unauthorized or unmonitored use by private citizens. The

bar against adverse possession or prescriptive use claims to municipal property ensures that no

matter what the circumstances, the private use of municipal lands will not result in their loss or

compromise from a title standpoint.

There is one important exception, though – the “Longtime Buildings and Fences Law.” Title 23

M.R.S.A. § 2952 provides that where road boundaries are unknown and cannot be made certain

by records or monuments, buildings or fences fronting on the road and existing for more than 20

MMA’s web site ( www.memun.org ). (By R.P.F.)

Answer: No. First of all, you’re right not to plow or otherwise maintain private roads at public

expense – it’s been ruled unconstitutional (see “Plowing Private Roads & Driveways Revisited,”

Maine Townsman, November 2003).

Secondly, the property tax is an ad valorem (according to value) tax that has little or no

relationship to the value of public services provided or the cost of private, substitute services.

The Maine Constitution (Article IX, Section 9) requires all property to be assessed equally

according its “just” (fair market) value, without regard to public services that may (or may not)

be available.

the property’s just or fair market value as determined by a uniform, reliable methodology such as

The Maine Constitution, Art. I, Sec. 21 provides: "Private property shall not be taken for public

uses without just compensation; nor unless the public exigencies require it." A number of state

laws authorize eminent domain. They are summarized in this note. Mention is also made of some

landowner(s) before exercising the power of eminent domain. (23 MRSA Section 3023 requires

efforts at negotiated purchase and sale unless the municipal officers determine that "public

exigency requires the immediate taking" of the property interest concerned.) Second, the statutes

should be reviewed carefully, to ensure that any limitations on the particular power exercised are

understood. Third, a municipality embarking on an eminent domain taking should consider

engaging legal counsel to assist the town in the process and to ensure that all parties with an

interest in the real estate that is to be taken are identified. Fourth, the services of a competent real

estate appraiser should be engaged. The appraiser should be willing to defend her appraisal in

court if necessary (and should be prepared to point out deficiencies in any appraisal done for the

landowner); and, preferably, the appraiser should be experienced in such courtroom "Battles of

procedure that an article stating a specific amount cannot be amended to increase the amount.)

These procedural ground rules concerning condemnation orders and town meeting (and there are

other rules, which should be reviewed) are set out in 23 MRSA Section 3023, which is usually

invoked as the source of procedures by the subject-matter-specific statutes listed below. In each

case, however, check the subject-matter-specific statute to see if it includes any variations on the

basic procedure.

Here are the general statute giving eminent domain powers to municipalities, and some related

owner or the owner's family resides in a dwelling house located on the land. The other limitation

is that, with one exception, land taken under this statute may not be used for any purpose other

than the purposes for which it was originally taken (The exception is that land taken for a public

park may, on the majority vote of the municipal legislative body, be conveyed to the Federal

Government to become part of a national park ). Section 3101 takings are expressly to be

accomplished by the procedures for the taking of land or interests in land for a town way. These

are set out in 23 MRSA Sections 3021 et seq.

23 MRSA Section 3024: Recording of eminent domain proceedings. This statute provides that no

municipal taking shall be valid against owners of record or abutters who have not received actual

or public easements, and takings under 30A MRSA Section 3101, as well as takings under any

other statutes that specifically refer to chapter 304 of Title 23. It may apply more broadly, to any

taking Consultation with MMA Legal Services staff or another attorney is advised on this point.

23 MRSA Section 3029: Damages and appeals. This statute provides that damages (the

compensation to be paid for a taking) shall be determined using the methods of 23 MRSA

Sections 154 through 154E. It also authorizes appeals by any person aggrieved either by the

determination of the amount of damages for a taking or by the action or nonaction of municipal

officers or a municipal legislative body, and it sets or incorporates by reference the deadlines for

filing the two kinds of appeals allowed. Like 23 MRSA Sections 3021 and 3024, this statute

13 MRSA Sections1181-1184: Cemeteries

20A MRSA Sections 16101-16105: Schools.

23 MRSA Section 2801: Landings.

23 MRSA Section 2802: Parking places.

30A MRSA Section 3102: Erosion control and navigation.

30A MRSA Section 3252: Trees along ways and water. Note that an issue with this statute is

whether the limitations of 30A MRSA Section 3101 (discussed above) apply.

30A MRSA Section 3351: Public dumping grounds.

30A MRSA Section 3402: Sewers and drains (for sewage); compare 23 MRSA Section 3251,

listed above.

30A MRSA Section 5403: Parking facilities, water and sewer systems, telecommunications

systems, airports, and energy facilities under the Revenue Producing Municipal Facilities Act.

Note that interests in land can also be taken for parking places under 23 MRSA 2802, listed

above.

38 MRSA Sections 1151-1154: Sanitary district eminent domain powers.

Additional notes:

authorizes municipal officers to treat a town way or public easement as a 3-rod road, centered on

the center line of the traveled portion of the way, where the true boundaries cannot be

ascertained. It provides that where the municipal officers use a portion of the way that is outside

the improved (i.e., built or wrought) portion but still within the one and one-half rods on a side of

the center line, "they shall award damages to the owner as provided in section 3005." Section

3005 is now 23 MRSA Section 3029, discussed above.

30A MRSA Section 3201: Acquisition of lands for forestation or forest reclamation. This is not

forestation or for forest reclamation is for a public purpose.

23 MRSA Sections 3501 and 3502: Land and materials for highway construction. These have

been repealed and, in effect, replaced by 23 MRSA Sections 3021-3024. Note that although

repealed Sections 3501 or 3502 seemingly made clear that a town could take land for road

construction materials (e.g., gravel), that is not clear under the current 3021-3024. For that

reason, it is perhaps advisable that 30A MRSA 3101, and not 23 MRSA 3021-3024, be used for

obtaining materials (alternatively, use the 2 in conjunction). Of course, the use of Section 3101

will subject the taking to the limitations in that statute.

counterpart is now known. Use 30A MRSA Section 3101 for recreation eminent domain

purposes.

30 MRSA Sections 4001-4003: Parks, playgrounds, libraries and buildings for municipal

purposes. Like 30 MRSA Section 3552 (immediately above), these were repealed before the re-

codification of Title 30 into Title 30A, and no counterpart is now known. Use 30A MRSA

Section 3101 for these purposes.

14 MRSA Section 868: Statute of limitations. This statute establishes an outside time limit for

commencing a suit for damages caused by a taking. The limit is 3 years after the cause of action

Maine Townsman - January, 1990

to speak: at a public hearing, however, the public does have a right to speak, because that is the

Public meetings and public hearings are both "public proceedings" as defined in 1 MRSA § 402

(part of the Right-to-Know Law). The public must be notified of such proceedings pursuant to 1

MRSA § 406. Issues other than notice and hearings are not discussed here. For further

information. see the April 1976 MAINE TOWNSMAN article entitled 'How to Conduct a Public

Hearing.'

The General Rule