An Act To Ensure a Public Process When Discontinuing or Abandoning a Public Road
Mandate preamble. This measure requires one or more local units of government to expand or modify activities so as to necessitate additional expenditures from local revenues but does not provide funding for at least 90% of those expenditures. Pursuant to the Constitution of Maine, Article IX, Section 21, 2/3 of all of the members elected to each House have determined it necessary to enact this measure.
Sec. 1. 23 MRSA §2060, sub-§2, as enacted by PL 1999, c. 188, §2, is amended to read:
Sec. 2. 23 MRSA §3021, sub-§1-A is enacted to read:
Sec. 3. 23 MRSA §3021, sub-§2, as enacted by PL 1975, c. 711, §8, is amended to read:
Sec. 4. 23 MRSA §3026, as repealed and replaced by PL 1981, c. 683, §1, is repealed.
Sec. 5. 23 MRSA §§3026-A is enacted to read:
§ 3026-A. Discontinuance of town ways
A municipality may terminate in whole or in part any interests held by it for highway purposes. A municipality discontinuing a town way or public easement in this State must meet the following requirements.
(1) The extent of municipal maintenance and liability responsibilities, if any; and
(2) The restrictions on how the public may use the public easement, if any.
If a proposal includes the discontinuance of a public easement, that must be stated explicitly in the order of discontinuance.
If the order of discontinuance of a public easement is approved, the abutters of that public easement must be granted a right-of-way prior to the filing of the certificate of discontinuance pursuant to subsection 5.
An easement for public utility facilities necessary to provide or maintain service remains in a discontinued town way regardless of whether a public easement is retained. Upon approval by a municipal legislative body of an order to discontinue a town way and retain a public easement, unless otherwise stated in the order, all remaining interests of the municipality pass to the abutting property owners in fee simple to the center of the way.
Sec. 6. 23 MRSA §3027, sub-§1, as amended by PL 1987, c. 385, §1, is further amended to read:
(The municipal officers of) (A petition has been filed with the municipal officers of)_____________________ (Name of Town or City)__________________ (propose to) (to vacate) the following (ways) (way) shown upon a subdivision plan (named) (dated) (and) recorded in the_________________________County Registry of Deeds, Book of Plans, Volume________, Page________.
(Herein list or describe ways to be vacated)
If the municipal officers enter an order vacating (these ways) (this way) any person claiming an interest in (these ways) (this way) (adverse to the claims of the petitioners) must, within one (1) year of the recording of the order, file a written claim thereof under oath in the_________________ County Registry of Deeds and must, within one hundred eighty (180) days of the filing of the claim, commence an action in the Superior Court in ___________________ County in accordance with the Maine Revised Statutes , Title 23, section 3027-A.
The municipal officers shall file an order of vacation with the municipal clerk that specifies the location of the way, the names of owners of lots on the recorded subdivision plan and the amount of damages, if any, determined by the municipal officers to be paid to each lot owner or other person having an interest in the way. Damages and reasonable costs as determined by the municipal officers shall must be paid by the petitioners, if any.
Sec. 7. 23 MRSA §3028, sub-§1, as enacted by PL 1991, c. 195, is amended to read:
Sec. 8. 23 MRSA §3028, sub-§1-A is enacted to read:
Sec. 9. 23 MRSA §3028, sub-§5 is enacted to read:
Sec. 10. 23 MRSA §3029-A is enacted to read:
§ 3029-A. Damage to public easement; cause of action
Sec. 11. 35-A MRSA §2308, as amended by PL 2011, c. 623, Pt. B, §9, is further amended to read:
§ 2308. Protection of utility facilities upon discontinuance of public ways
In proceedings for the discontinuance of public ways, public ways may be discontinued in whole or in part. The discontinuance of a town way must be pursuant to Title 23, section 3026 3026-A. Unless an order discontinuing a public way specifically provides otherwise, the public easement provided for in Title 23, section 3026 3026-A includes an easement for public utility facilities and for the permitted facilities of entities authorized under section 2301 to construct lines. A utility or entity may continue to maintain, repair and replace its installations within the limits of the way or may construct and maintain new facilities within the limits of the discontinued way, if it is used for travel by motor vehicles, in order to provide utility or telecommunications service, upon compliance with the provisions of sections 2503, 2505, 2506, 2507 and 2508.
Sec. 12. Municipalities to develop list of town ways. A municipality may prepare a list of all town ways in that municipality that are currently maintained with public funds; a list of all town ways that have been discontinued since 1965 and whether or not a public easement was retained, if known; and a list of all town ways that have been abandoned since 1965 and whether or not a public easement was retained, if known. A municipality shall publish any such lists on its publicly accessible website or make copies available at the municipal office. A municipality may charge a reasonable fee for the lists. A municipality shall record the lists at the appropriate county registry of deeds. The registry of deeds shall record these lists under the name of the municipality. The Department of Transportation may provide a municipality a list of that municipality's state and state aid highways and individual town ways.
summary
This bill changes the laws governing discontinued and abandoned roads.
Under current law, a presumption of abandonment exists if a municipality fails to keep a way passable for the use of motor vehicles at the expense of the municipality for a period of 30 or more years. This bill eliminates that presumption for ways that have not met that statutory requirement by January 1, 2020. Instead, for all other public ways, the bill provides a new discontinuance process, which will be the only means for a municipality to actively terminate its interests in a public way. The new discontinuance process specifies 5 steps a municipality must follow to discontinue a road: the notification of proposed discontinuance to the abutting property owners; a meeting of municipal officers to discuss the proposed discontinuance and the filing of an order of discontinuance specifying whether or not there will be a public easement and any public use restrictions or municipal maintenance and liability responsibilities for the public easement; a public hearing on the discontinuance; approval of the order of discontinuance by the municipal legislative body; and the filing of the certificate of discontinuance by the municipal clerk in the registry of deeds and with the municipality. The bill requires the abutters of a public easement that is discontinued to be granted a right-of-way. The municipality may charge a reasonable fee to fulfill any request for records obtained by the municipality from the registry of deeds.
The bill continues to exempt a municipality from liability for nonperformance of a legal duty with respect to a town or county way that has not been kept passable for the use of motor vehicles at the expense of that municipality for a period of 30 or more years.
It requires that a public easement must be retained in a discontinued road if abutting property owners need to use it to access their property. It also provides that a public utility easement will be in place whenever a road is discontinued, regardless of whether a public easement is retained.
A way that is presumptively abandoned retains a public easement, as is the default position under current law. The bill does not modify common law abandonment.
The bill allows a municipality to prepare a list of all town ways in that municipality that are currently maintained with public funds; a list of all town ways that have been discontinued since 1965 and whether or not a public easement was retained, if known; and a list of all town ways that have been abandoned since 1965 and whether or not a public easement was retained, if known. If a municipality prepares a list, the municipality must publish the list on its publicly accessible website or make copies available at the municipal office, for which the municipality may charge a reasonable fee. The municipality must record the list at the county registry of deeds.