An Act To Ensure a Public Process When Discontinuing or Abandoning a Public Road
Maine Legislature, Session 127, LD 1325
Committee: State and Local Government
Sponsors: NADEAU, VALENTINO, CHENETTE, LONGSTAFF, PICKETT, SAUCIER, SHORT, WARREN
Amends: 23 MRSA §2060, 23 MRSA §3021, 23 MRSA §3026, 23 MRSA §3027, 23 MRSA §3028, 23 MRSA §3029-A, 35-A MRSA §2308

Legislative Document 
No. 1325 
H.P. 903 
House of Representatives, April 14, 2015 
An Act To Ensure a Public Process When Discontinuing or 
Abandoning a Public Road 
Reference to the Committee on State and Local Government suggested and ordered printed. 
ROBERT B. HUNT 
Clerk 
Presented by Representative NADEAU of Winslow. 
Cosponsored by Senator VALENTINO of York and 
Representatives: CHENETTE of Saco, LONGSTAFF of Waterville, McCABE of Skowhegan, 
PICKETT of Dixfield, SAUCIER of Presque Isle, SHORT of Pittsfield, WARREN of 
Hallowell. 
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 3026 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 MRSA §3021, sub-§1-A is enacted to read: 
1-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: 
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 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.  Notification of discontinuance to abutting property owners.  The municipal 
officers shall give best practicable notice to all abutting property owners 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 or right-of-way for the abutting property owners 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. 
If a proposal includes the discontinuance of a public easement, that must be stated 
explicitly in the order of discontinuance. 
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:  
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. 
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. 
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 and with the municipality.  The certificate must 
describe the town way or public easement, any rights-of-way granted 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.   
6.  Liability.  A municipality or its officials are not liable 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 the municipality for a period of 30 or more years. 
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: 
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 
notice, as defined in section 3026 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 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. 8.  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. 9.  23 MRSA §3028, sub-§5 is enacted to read: 
5.  Filing.  If after the effective date of this subsection the municipal officers, either 
on their own or after being presented with evidence of abandonment or discontinuance, 
determine that a town way has been discontinued by abandonment pursuant to subsection 
1, the municipal clerk shall file a record of this determination with the registry of deeds 
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.  If a municipality provides records obtained from the registry of 
deeds, the municipality may charge a reasonable fee for these records. 
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 §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.