An Act To Hold Municipal Officers Harmless for a Determination That a Town Way or Public EasementIs Considered Abandoned
Maine Legislature, Session 124, LD 0680
Committee: State and Local Government
Sponsors: HASTINGS, CROCKETT, HOBBINS, NASS, SMITH
Amends: 23 MRSA §3028

FIRST RF,GULAR SESSION=2009 
Legislative Document 
No. 680 
S.P.255 
In Senate, February 24, 2009 
An Act To Hold Municipal Officers Harmless for a Determination 
That a Town Way or Public EasementIs Considered Abandoned 
Reference to the Committee on State and Local Government suggested and ordered printed. 
Presented by Senator HASTINGS of Oxford .. 
Cosponsored by Representative CROCKETT of Bethel and 
9t8(J~ 
JOY J. O'BRIEN 
Secretary of the Senate 
Senators: HOBBINS ofYork,NASS of York, SMITH of Piscataquis. 
Printed on recycled paper 
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~e it enacted by the People of the State of Maine as follows: 
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. .. ' Sec. 1. 23 MRSA §3028, as repealed and replaced by PL 1991, c, 195, is amended' 
to read: 
§3028. Abandonment of public ways; determination of status of any town way or 
public easement 
1. Presumption of abandonment. 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 is at all 
times subject to an affiimative vote of the legislative body ofthe municipality within 
which the way lies making that wayan 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 courity to consider 
or use the way as if it were a public way. 
2. ·Status of town way or public easement. The determination of the municipal 
officers regarding the status of a town way or public easement is binding on al~ persons 
Until a [mal determination of that status has been made by a court, unless Qtherwise 
ordered by a court during the pendency of litigation to determine the status. 
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3. Removal of obstructions. If the municipal officers have determined under 
subsection 2 that the way isa town way or public easement and a court has not ordered 
otherWise, the municipality or an abutter on the way, acting with the written permission 
of the municipal officers, may remove any gates, bars or other obstructions in the way. 
4. Quasi-iudicial act. The determination of the ~unicipal officers regarding the 
status of a town way or public easement pursuant to subsection 2 is' a quasi-judicial act 
under Title 14, section 81 04-B, subsection 2. 
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This' bill ensures that municipal officers are not liable for any decision relating to an 
abandoned road by clarifying that the determination of the municipal officers regarding 
the status of a town way is a quasi-judicial decision under the Maine Tort Claims Act. 
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