An Act To Improve the Law Regarding Abandoned Roads
Maine Legislature, Session 130, LD 0596
Committee: State and Local Government
Sponsors: CLAXTON
Amends: 23 MRSA §3028, 23 MRSA §3028-A

Legislative Document
No. 596
S.P. 234
In Senate, March 1, 2021
An Act To Improve the Law Regarding Abandoned Roads
Received by the Secretary of the Senate on February 25, 2021.  Referred to the Committee 
on State and Local Government pursuant to Joint Rule 308.2 and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator CLAXTON of Androscoggin.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  23 MRSA §3028, as amended by PL 2015, c. 464, §7, is repealed.
Sec. 2.  23 MRSA §3028-A is enacted to read:
§3028-A.  Abandonment of town ways
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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;
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
C.  With the county clerk for an appeal of a vote by the county commissioners.
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.
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.
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.
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.
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.
Sec. 3.  Effective date. This Act takes effect October 1, 2021.
SUMMARY
This bill, effective October 1, 2021, repeals the current statute on the abandonment of 
town ways and enacts a new abandonment process in statute that a municipality may choose 
to follow to declare a town way abandoned.  This process includes notice provisions to 
abutting property owners, property owners for whom the town way is the only means of 
access and adjacent municipalities and counties and provides for a public hearing process 
and an appeals process.  The bill clarifies that the public easement retained in a town way 
discontinued by abandonment is limited to rights of access by foot or motor vehicle, which 
are the limits of public easements laid out by a municipality through its eminent domain 
powers in the Maine Revised Statutes, Title 23, section 3022.