Maine Revised Statutes Title 23 Sec. 3028-A – Abandonment of town ways
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Beginning October 1, 2021, a town way, or portion thereof, may not be declared discontinued by abandonment unless the municipality or county where the proposed abandoned town way is situated complies with the requirements of this section. A municipality or its officials or a county or its officials are not liable for nonperformance of a legal duty with respect to a town way declared discontinued by abandonment in accordance with this section. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
1. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A. “Affected property” means real property that abuts the town way to be declared discontinued by abandonment and real property for which the town way is the only access route. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
B. “Best practicable notice” means, at minimum, the mailing of notice by the United States Postal Service, postage prepaid, first class, to affected property owners whose addresses appear in the assessment records of the municipality or county. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
Terms Used In Maine Revised Statutes Title 23 Sec. 3028-A
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Municipal officers: means the mayor and municipal officers or councilors of a city, the members of the select board or councilors of a town and the assessors of a plantation. See Maine Revised Statutes Title 1 Sec. 72
- Municipality: includes cities, towns and plantations, except that "municipality" does not include plantations in Title 10, chapter 110, subchapter IV; or Title 30?A, Part 2. See Maine Revised Statutes Title 1 Sec. 72
- Public easement: means an easement held by a municipality for purposes of public access to land or water not otherwise connected to a public way, and includes all rights enjoyed by the public with respect to private ways created by statute prior to July 29, 1976. See Maine Revised Statutes Title 23 Sec. 3021
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Town: includes cities and plantations, unless otherwise expressed or implied. See Maine Revised Statutes Title 1 Sec. 72
- Town way: means :
A. See Maine Revised Statutes Title 23 Sec. 3021United States: includes territories and the District of Columbia. See Maine Revised Statutes Title 1 Sec. 72
2. Declaration of abandonment. Municipal officers or county commissioners may vote to declare a town way discontinued by abandonment if:
A. For a period of 30 or more consecutive years, the town way was not kept passable for the use of motor vehicles at the expense of the municipality or county. Isolated acts of maintenance by the municipality or county without other evidence that shows a clear intent by the municipality or county to consider or use the town way as if it were a public way as defined in section 1903, subsection 11 does not negate evidence that the town way was not kept passable for the use of motor vehicles; and [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
B. The municipal officers or county commissioners vote to declare the town way discontinued by abandonment at a regularly scheduled meeting of the municipal officers or county commissioners. If the municipal officers or county commissioners vote to declare a town way discontinued by abandonment, they must also vote on whether a public easement is retained. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
A municipality or county may not declare a town way discontinued by abandonment if evidence is presented to the municipal officers or county commissioners at a meeting held pursuant to paragraph B or a public hearing held pursuant to subsection 4 that the municipality or county received funds for any portion of the town way that is the subject of the discontinuance by abandonment for more than 84 months of the period of 30 or more consecutive years specified in paragraph A.
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
3. Notification of discontinuation by abandonment. The municipal officers or county commissioners shall give best practicable notice to all affected property owners of the town way to be declared discontinued by abandonment at least 30 days prior to the meeting required in subsection 2, paragraph B.
A. The notice must include information regarding the potential retention of a public easement, and:
(1) The affected property owners’ maintenance obligations for and right of access to the town way, if any;
(2) The right of access to the town way by the public if a public easement is retained; and
(3) Information regarding the rights of affected property owners to enter into agreements regarding maintenance of and access to that town way, including the right of affected property owners to create private easements. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
B. If the town way to be declared discontinued by abandonment is the only means of access to property in an adjacent municipality or county, the municipal officers or county commissioners shall cause a written notice of the meeting required in subsection 2, paragraph B to be given to the municipal officers or county commissioners of the adjacent municipality or county at least 30 days prior to that meeting. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
4. Public hearing. The municipal officers or county commissioners shall hold a public hearing prior to voting to declare a town way discontinued by abandonment under subsection 2 upon receipt of written request signed by at least 25% of affected property owners. The written request for a public hearing must be received by the municipal clerk or county clerk no more than 10 days after the notification issued pursuant to subsection 3.
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
5. Status of town way discontinued by abandonment. If the municipal officers or county commissioners vote to declare a town way discontinued by abandonment, the interests of the municipality or county in the abandoned town way pass as follows.
A. If the municipal officers or county commissioners vote to not retain a public easement in the abandoned town way, all interests of the municipality or county in the town way, if any, pass to the abutting property owners to the center of the town way. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
B. If the municipal officers or county commissioners vote to retain a public easement in the abandoned town way, all other interests of the municipality or county in the town way, if any, pass to the abutting property owners to the center of the town way and the public easement retained is limited to rights of access by foot or motor vehicle as defined in Title 29?A, section 101, subsection 42. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
An easement for public utility facilities necessary to provide or maintain service remains in a town way declared to be discontinued by abandonment regardless of whether a public easement is retained by the municipality or county.
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
6. Filing in registry of deeds. If the municipal officers or county commissioners vote to declare a town way discontinued by abandonment, the municipal clerk or county clerk shall record an attested certificate of the discontinuance by abandonment in the registry of deeds in the county where the abandoned town way is situated.
A. The certificate of discontinuance by abandonment may not be filed before the appeal period in subsection 7 has passed or, if an appeal is filed, before the appeal process has ended. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
B. The certificate of discontinuance by abandonment must list the date of the vote by the municipal officers or county commissioners, describe the town way and include whether a public easement was retained. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
C. The register of deeds shall record the certificate of discontinuance by abandonment under the name of the town way, the name of the municipality or county and the names of the affected property owners. The municipal clerk or county clerk shall provide a photocopy of the certificate to the Department of Transportation, Bureau of Maintenance and Operations. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
7. Appeal. Notwithstanding section 3029, a person affected by a vote to declare a town way discontinued by abandonment may appeal the decision by filing a written appeal request within 10 days of the vote as follows:
A. With the municipal clerk for an appeal of a vote by the municipal officers in a municipality with a board of appeals authorized to hear the appeal; [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
B. With the county clerk for an appeal of a vote by the municipal officers in a municipality that does not have a board of appeals authorized to hear the appeal; or [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
C. With the county clerk for an appeal of a vote by the county commissioners. [PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
Within 15 days after receiving a written appeal request filed pursuant to this subsection, the municipal clerk or county clerk shall schedule a public hearing on the appeal before the municipal board of appeals or county commissioners and provide written notice of the hearing date to the municipal officers or county commissioners and the person filing the appeal request. The public hearing must occur no more than 30 days after the appeal request is received.
A person aggrieved by the decision of the municipal board of appeals or county commissioners pursuant to this subsection may appeal the decision to the Superior Court in the county where the town way is situated, pursuant to the Maine Rules of Civil Procedure, Rule 80B.
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
8. Quasi-judicial act. The determination of the municipal officers regarding the status of a town way pursuant to this section is a quasi-judicial act under Title 14, section 8104?B, subsection 2.
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
9. Previously abandoned town ways. This section does not alter the status of a town way abandoned by a municipality or county under the terms of former section 3028.
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
10. Common law abandonment. This section does not alter the ability of a town way to be abandoned under the common law presumption of abandonment.
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
11. Removal of obstructions. If the municipal officers or county commissioners have declared a town way discontinued by abandonment and have retained a public easement in the abandoned town way under this section, the municipality, county commissioners or an abutter on the way, acting with the written permission of the municipal officers or county commissioners, may remove any gates, bars or other obstructions in the town way.
[PL 2021, c. 145, §2 (NEW); PL 2021, c. 145, §3 (AFF).]
SECTION HISTORY
PL 2021, c. 145, §2 (NEW). PL 2021, c. 145, §3 (AFF).