An Act To Implement the Recommendations from the Discontinued and Abandoned Roads Stakeholder Group
Maine Legislature, Session 126, LD 1177
Committee Amendment CA_B_S436 (Senate)
Amends: 23 MRSA §2060, 23 MRSA §3021, 23 MRSA §3028, 23 MRSA §302, 23 MRSA §3029-A, 35-A MRSA §230

COMMITTEE AMENDMENT "'6 " to S.P. 414, L.D. 1177, Bill, "An Act To 
Implement the Recommendations from the Discontinued and Abandoned Roads 
Stakeholder Group" 
Amend the bill by striking out everything after the title and before the summary and 
inserting the following: 
'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. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 23 MRSA §2060, sub-§2, as enacted by PL 1999, c. 188, §2, is amended 
to read: 
2. 
Effect and exceptions. 
Upon discontinuance, all interests of the county or 
municipality pass to the abutting property owners to the center of the way, including any 
public easement, in accordance with section WU 3026-A. When the Department of 
Transportation is an abutting owner, then the interests in the way pass to the property 
owner opposite the department's ownership in accordance with a plan showing the right-
of-way line established for the new highway location by the department. The plan must 
be referenced in the order of discontinuance. 
Sec. 2. 23 MRS A §3021, sub-§l-A is enacted to read: 
I-A. 
Municipal legislative body. 
"Municipal legislative body" has the same 
meaning as in Title 30-A, section 2001, subsection 9. 
Sec. 3. 23 MRSA §3021, sub-§2, as enacted by PL 1975, c. 711, §8, is amended 
to read: 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT "8" to S.P. 414, L.D. 1177 
2. Public easement. "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 the effective date of this Act July 29, 1976. Private ways created pursuant 
to former sections 3001 and 3004 prior to the effective date of this Act July 29,1976 are 
public easements. 
Sec. 4. 23 MRS A §3026, as repealed and replaced by PL 1981, c. 683, § 1, is 
repealed. 
Sec. 5. 23 MRS A §§3026-A and 3026-B are 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. Notification of discontinuance to abutting property owners and municipal 
planning board. The municipal officers shall give best practicable notice to all abutting 
property owners and the municipal planning board or office of a proposed discontinuance 
of a town way or public easement. As used in this subsection, "best practicable notice" 
means, at minimum, the mailing by the United States Postal Service, postage prepaid, 
first class, of notice to abutting property owners whose addresses appear in the 
assessment records of the municipality. 
2. Municipal officers meet to discuss proposed discontinuance and file order of 
discontinuance. The municipal officers shall discuss a proposed discontinuance of a 
town way or public easement at a public meeting and file an order of discontinuance with 
the municipal clerk that specifies: 
A. The location of the town way or public easement; 
B. The names of abutting property owners; 
C. The amount of damages, if any, determined by the municipal officers to be paid to 
each abutter; 
D. For a town way, whether or not a public easement will be retained. If the existing 
legal rights of abutting property owners to access their property will be eliminated, a 
public easement must be retained; and 
E. If a public easement is to be retained: 
(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. 
3. Public hearing. The municipal officers shall hold a public hearing on the order of 
discontinuance of a town way or public easement filed pursuant to subsection 2. 
4. 
Approval of order of discontinuance and damage awards. 
Ten or more 
business days after the public hearing pursuant to subsection 3, the municipal legislative 
body must vote upon the order of discontinuance submitted to it: 
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COMMITTEE AMENDMENT" S" to S.P. 414, L.D. 1177 
A. To approve the order of discontinuance, including the public easement and the 
restrictions set in the order and the damage awards, and to appropriate the money to 
pay the damages; or 
B. To disapprove the order of discontinuance. 
5. Certificate of discontinuance filed. The municipal clerk shall record an attested 
certificate of discontinuance after a vote by the municipal legislative body under 
subsection 4 in the registry of deeds, with the Department of Transportation and with the 
municipality. The certificate must describe the town way or public easement and the 
final action by the municipal legislative body. The date the certificate of discontinuance 
is filed is the date the town way or public easement is discontinued. The registry of deeds 
shall record a certificate of discontinuance under the name of the town way or public 
easement, the name of the municipality and the names of the abutters. 
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. 
§3026-B. Reconsideration of order of discontinuance 
1. Reconsideration of discontinuance. In the 21 st year after the date on which a 
certificate of discontinuance is filed pursuant to section 3026-A, subsection 5, the 
municipal legislative body shall reconsider and vote regarding the discontinuance of a 
town way or public easement pursuant to section 3026-A. If the municipal legislative 
body disapproves the order of discontinuance, the municipal officers must initiate 
proceedings to revise the proposed order of discontinuance pursuant to section 3026-A or 
layout a town way pursuant to section 3022. If the municipal legislative body has not 
reconsidered and voted regarding the discontinuance within the 21st year since the date 
the certificate of discontinuance was filed, the discontinuance continues, subject to future 
action of the municipal legislative body. 
2. Petition by abutters. If a municipal legislative body has not held a vote pursuant 
to subsection 1, upon the petition of one or more abutting property owners, the municipal 
legislative body shall reconsider and vote pursuant to section 3026-A, regarding the 
discontinuance of the town way or public easement. After the municipallegislative body 
has voted under this subsection, the discontinuance may be reconsidered only pursuant to 
the municipal legislative body's procedures. 
Sec. 6. 23 MRS A §3027, sub-§l, as amended by PL 1987, c. 385, §1, is further 
amended to read: 
1. Vacation of ways. Where When proposed town ways have been described in a 
recorded subdivision plan and lots have been sold with reference to the plan, the 
municipal officers, after notice to the municipal planning board or office, may, on their 
own initiative, on petition of the abutting property owners or on petition of any person 
claiming a property interest in the proposed way, vacate in whole or in part proposed 
ways that have not been accepted. The municipal officers shall give best practicable 
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COMMITTEE AMENDMENT" e," to S.P. 414, L.D. 1177 
notice, as defined in section JW6 3026-A, subsection 2- 1, of the proposed vacation to 
owners of lots on the recorded subdivision plan and their mortgagees of record. The 
notice shall must conform in substance to the following form: 
NOTICE 
(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: 
1. Presumption of abandonment. It Except as provided by subsection I-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 
discontinuaace 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 wayan easement for recreational use. A presumption of 
abandonment is not rebutted by evidence that shows isolated acts of maintenance, unless 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT "\3" to S.P. 414, L.D. 1177 
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. B. 23 MRSA §302B, sub-§I-A is enacted to read: 
I-A. Termination through discontinuance process only. For a town way that does 
not meet the requirements of subsection 1 as of January 1, 2015, 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. 9. 23 MRS A §302B, sub-§5 is enacted to read: 
5. 
Filing. 
If after the effective date of this subsection the municipal officers 
determine that a town way has been abandoned pursuant to subsection 1, the municipal 
clerk shall file a record of this determination with the registry of deeds, the Department of 
Transportation and the municipality. 
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 abutters. 
Sec. 10. 23 MRSA §3029-A is enacted to read: 
§3029-A. Damage to public easement; cause of action 
1. Cause of action. An owner of property abutting a discontinued or abandoned 
road in which a public easement exists may bring a civil action in Superior Court for 
damages and injunctive relief against a person who causes damage to the road in a way 
that impedes reasonable access by the property owner to the property owner's property by 
motor vehicle as defined in Title 29-A, section 101, subsection 42. 
2. 
Damages. Damages may be sought pursuant to subsection 1 in an amount 
reasonably necessary to restore the road to its condition prior to the use by the person 
against whom the action is brought. 
3. Attorney's fees and costs. If the plaintiff under subsection 1 is the prevailing 
party, the plaintiff may be awarded reasonable attorney's fees and costs. 
Sec. 11. 35-A MRSA §230B, 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-A. Unless an order discontinuing a public way specifically 
provides otherwise, the public easement provided for in Title 23, section ~ 
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. 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT" B" to S.P. 414, L.D. 1177 
Sec. 12. Municipalities to develop list of town ways. During the first fiscal 
year for which the state budget provides that the amount to be distributed to 
municipalities from the Local Government Fund pursuant to the Maine Revised Statutes, 
Title 30-A, section 5681 is at least 5% of the receipts by the fund for that fiscal year from 
the taxes imposed under Title 36, Parts 3 and 8 and Title 36, section 2552, subsection 1, 
paragraphs A to F and L without any further reductions, a municipality shall 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 the lists on its publicly accessible website or make copies available at the 
municipal office. A municipality shall record the lists at the appropriate county registry 
of deeds and with the Department of Transportation. The registry of deeds shall record 
these lists under the name of the municipality. The Department of Transportation may 
pro' ide a municipality a list of that municipality's state and state aid highways and 
individual town ways.' 
SUMMARY 
This amendment, which is the minority report of the committee, changes the laws 
governing discontinued and abandoned roads. 
It specifies 5 steps a municipality must follow to discontinue a road: the notification 
of proposed discontinuance to the abutting property owners and municipal planning 
board; 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, with the 
Department of Transportation and with the municipality. 
The amendment also changes the law to require a municipality to go through the 
discontinuance procedure again in the 21 st year after the discontinuance certificate was 
originally filed. If no vote is held, then the discontinuance continues until an abutting 
property owner petitions the municipality to reconsider the discontinuance or pursuant to 
other municipal action. 
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. 
The amendment provides that the statutory presumption of abandonment applies only 
to ways that have met the statutory requirements as of January 1, 2015. For all other 
public ways, the new discontinuance process will be the only means to cease the 
maintenance obligations of the municipality or county for the public way. 
Going 
forward, if the municipal officers have determined that a town way is presumptively 
abandoned pursuant to statute, the municipal clerk must file a record of this determination 
with the county registry of deeds, the Department of Transportation and the municipality. 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT" 'e," to S.P. 414, L.D. 1177 
A way that is presumptively abandoned retains a public easement, as is the default 
position under current law. The amendment does not modify common law abandonment. 
The amendment provides that, during the first fiscal year when state-municipal 
revenue sharing is fully funded at 5% of the taxes imposed under the Maine Revised 
Statutes, Title 36, Parts 3 and 8, and Title 36, section 2552, subsection 1, paragraphs A to 
F and L, a municipality must 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. The municipality must publish the list on its 
publicly accessible website or make copies available at the municipal office. The 
municipality must record the list at the county registry of deeds and with the Department 
of Transportation. 
FISCAL NOTE REQUIRED 
(See attached) 
COMMITTEE AMENDMENT 
Approved: 03112114 frae 
LD 1177 
LR 1124(03) 
An Act To Implement the Recommendations from the Discontinued and Abandoned Roads Stakeholder 
Group 
Fiscal Note for Bill as Amended by Committee Amendment lie; (S-<-J3lP) 
Committee: State and Local Government 
Fiscal Note Required: Yes 
Fiscal Note 
State Mandate - Exempted 
Minor cost increase - General Fund 
Minor revenue increase - General Fund 
Correctional and Judicial Impact Statements 
Increases the number of civil cases. 
The collection of additional filing fees may also increase General Fund revenue by minor amounts. 
State Mandates 
Required Activity 
Unit Affected 
Municipalities will be required to conduct a public hearing, file orders of 
Municipality 
discontinuance with the registry of deeds and the Department of Transportation, 
provide notice to abutting property owners and hold a vote of the municipal 
legislative body to discontinue a town way. During the first fiscal year when State-
Municipal Revenue Sharing is fully funded at 5% of certain taxes, municipalities 
must prepare a list of all town ways that are currently maintained with public funds 
and town ways that have been discontinued since 1965. 
Local Cost 
Moderate statewide 
Pursuant to the Mandate Preamble, the two-thirds vote of all members elected to each House exempts the State from the 
constitutional requirement to fund 90% of the additional costs. 
LRl124(03) - Fiscal Note - Page 1 of 1