HP1028, LD 1415, item 1, An Act To Improve the Laws Regarding Discontinued and Abandoned Roads

An Act To Improve the Laws Regarding Discontinued and Abandoned Roads

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 23 MRSA §3028, sub-§1, as enacted by PL 1991, c. 195, is amended to read:

1. Presumption of abandonment. It Except as provided by subsection 1-A, it is prima facie evidence that a town or county way not kept passable for the use of motor vehicles at the expense of the municipality or county for a period of 30 or more consecutive years has been discontinued by abandonment. A presumption of abandonment may be rebutted by evidence that manifests a clear intent by the municipality or county and the public to consider or use the way as if it were a public way. A proceeding to discontinue a town or county way may not prevent or estop a municipality from asserting a presumption of abandonment. A municipality or its officials are not liable for nonperformance of a legal duty with respect to such ways if there has been a good faith reliance on a presumption of abandonment. Any person affected by a presumption of abandonment, including the State or a municipality, may seek declaratory relief to finally resolve the status of such ways. A way that has been abandoned under this section is relegated to the same status as it would have had after a discontinuance pursuant to section 3026, except that this status retains a public easement and all remaining interests of the municipality pass to the abutting property owners in fee simple to the center of the way. A way that has been abandoned under this section is at all times subject to an affirmative vote of the legislative body of the municipality within which the way lies making that way an easement for recreational use. A presumption of abandonment is not rebutted by evidence that shows isolated acts of maintenance, unless other evidence exists that shows a clear intent by the municipality or county to consider or use the way as if it were a public way.

Sec. 2. 23 MRSA §3028, sub-§1-A is enacted to read:

1-A. Termination through discontinuance process only. For a town way that does not meet the requirements of subsection 1 as of January 1, 2020, a municipality may terminate in whole or in part any interests held by it for highway purposes only through the discontinuance process pursuant to section 3026-A. This subsection is not intended to modify common law regarding abandonment of a road.

Sec. 3. 23 MRSA §3028, sub-§5, as enacted by PL 2015, c. 464, §7, is amended to read:

5. Filing of record of evidence and determination of abandonment. If after the effective date of this subsection the municipal officers, either on their own or after being presented with evidence of abandonment, determine that a town way has been discontinued by abandonment pursuant to subsection 1, the municipal officers shall provide in writing the evidence upon which the determination of discontinuation by abandonment was made and the municipal clerk shall file a record of this determination , the evidence upon which the determination was made and the effective date of the determination with the registry of deeds. The absence of a filing of a determination of discontinuation by abandonment may not be construed as evidence against the status of abandonment. The registry of deeds shall record a document regarding an abandoned town way under the name of the town way, the name of the municipality and the names of the abutting property owners. The municipal clerk shall provide a copy of the document regarding an abandoned town way to the Department of Transportation, Bureau of Maintenance and Operations.

summary

Under current law, a presumption of abandonment exists if a municipality fails for a period of 30 or more years to keep a way passable for the use of motor vehicles at the expense of the municipality. This bill eliminates that presumption for ways that have not met that statutory requirement by January 1, 2020 and instead specifies that the only process that a municipality may use to terminate its interests in a public way is through the discontinuance process established in the Maine Revised Statutes, Title 26, section 3026-A. This bill also amends the filing required by the clerk of a municipality following the determination of discontinuance by abandonment of a town way to require that the record filed with the registry of deeds include the evidence used by the municipality to make the determination of abandonment and the effective date of that determination of abandonment.

HP1028 LD 1415	Session - 129th Maine Legislature		LR 1078 Item 1
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