▼

Private Ways with Winter Maintenance

Show All Answers

1. 1. Why did the Town request Private and Special legislation 1723 for Windham?

This legislation was requested by the Town to correct access rights by town vehicles, address private way improvements, liability protection, and ownership responsibility. The Town of Windham has had a longstanding policy of plowing a large number of private ways to ensure emergency access and passage to our residents on these roads; however, a 1989 Opinion of the Justices of the Maine Supreme Court determined that it is unconstitutional for a municipality to expend public resources on private property. The objective of L.D. 1723 is to give us time to correct Windham’s variance from this ruling that was issued years ago, so that we can continue this service with the proper legal allowances. The classification of this legislation as “private and special” means that it only applies to Windham and no other town. Other municipalities have discontinued this practice; Windham has the highest known number of Town plowed private ways being serviced in the State.

2. 2. What is the problem?

The Town needs a mechanism (ordinance) to address the access rights of these town plowed private ways by municipal vehicles during winter months, the responsibility of landowners to perform annual/summer maintenance during the year, storm water management drainage issues, the insurability of municipal vehicles on Town plowed private ways and the lack of local road associations to address private way needs.    Current law does not provide a mechanism for addressing any of the above issues or unforeseen future challenges.   In 1989 the Maine Supreme Court issued an “Opinion of the Justices” stating that it would be unconstitutional for a town to use town funds for the private purpose of maintaining a private way.   Many towns throughout the state of Maine stopped when that occurred.  Windham attempted to address these problems through agreements with property owners, but that practice was not effective Simply put, the Town cannot legally continue to plow private ways unless the owners of those ways have given the Town the right to do so through grant of a public easement.

As you read through this Q & A, for the sake of clarity, all references “Private Ways” refer to private ways currently plowed by the town,  as identified on the list of 101 roads.

3. 3. Why did this practice start, and what is the history of Windham plowing private ways?

In short, from what has been researched, the Town started this practice many years ago to ensure emergency vehicle passage to existing properties.   

In the mid 70’s to 80’s private roads located around many lakes/ponds in Windham were not accessible during the winter.   This prohibited safe passage of emergency vehicles to existing properties.   The Town entered into easement and/or road maintenance agreements with property owners at that time to allow the Town to plow the roads during the winter.   Initially those signed agreements were up to date, but over the last 20 to 30 +/- years they have not been kept up to date.  These winter maintenance agreements expired many years ago and were not recorded in the Cumberland County Registry.  So, many of the original properties have new owners, and new properties created since then have owners who are not aware that a public easement was given to allow the plowing service, nor are they aware of the responsibilities of private landowners for continued winter maintenance services from the Town. 

Additionally, most of the affected roads are within the watershed of a waterbody.  Over recent years, the Town has been challenged by water quality issues, including surface water runoff, high levels of phosphorus and other concerns.   We will make progress  with some of the contamination concerns of these waterbodies/watersheds by  reasonable improvements to these Town plowed private ways.   

4. 4. What is the best solution?

The Town sought this Private and Special legislation to allow the Town a means by ordinance to properly address the issues identified.   This ordinance will identify the 101 roads that are currently being plowed by the Town and provide a mechanism by which the Town may continue its longstanding practice of providing plowing services to these roads, while leaving all other maintenance as the responsibility of landowners benefitted by the roads.   This list is definitive, meaning no future private ways may be added. See the attached Private Way list and Road Classification Map. Attempting to enter into new agreements with potentially over 1,723 direct abutter landowners and approximately 400 additional abutters on subsidiary roads, off the main private ways, is not practical. The ordinance approach simplifies the solution and eliminates the need for special agreements, etc.

5. 5. If I live on a private road which is not plowed by the Town does this affect my property?

No.

6. 6. If I live on a private way which is plowed by the Town does this affect my property?

Yes.

7. 7. What do owners on private ways need to do in order for the Town to continue plowing?

In order for the Town to continue this practice, LD 1723 requires that owners on private ways (1) grant a public easement to the Town; and (2) form a road association.

8. 8. What does "public easement" mean?

A public easement gives the Town the right – but not the obligation – to access a road for winter maintenance purposes.  It also gives the general public the right to travel over the road.  The Attorney General has opined that without public easements, the Town cannot legally justify continuing to plow public roads because this would be a use of public funds for private purposes.  Note that we do not anticipate that these public easements will increase public use of these private ways.  The Town will not advertise these roads as being open to the public or provide signage or any other indication on site that the roads are open to the public.  That said, if owners are concerned about public rights being granted to their road(s), they may certainly choose not to grant the public easement and to forego Town-provided plowing.

9. 9. If my private way has a road association, do I need to do anything?

Generally, no, the Town will work with the Road Association for the continued service.  The road association needs to be a formal structure not a simple verbal or written road maintenance agreement.  Over 50% of the Private ways the Town plows for winter maintenance have road associations.   The letter you received indicates you are on a private way road.  

However, please do help us update our records and have the association president or point of contact provide us with the

• Association Name and clarification on whether it is a “statutory” road association or registered nonprofit corporation;
• List of Directors;
• Street(s) or portion of street(s) included;
• Point of Contact; and
• Contact information including phone #, mailing address and email address.

10. 10. If my private way road does not have a road association, do I need to do anything?

Yes, if your road does not have a road association you or someone on your road will need to take the lead to set up the road association.    You should review the Town’s website for information; and begin with the step-by-step process for you or your designated representative for implementing a road association, notifying the Town and completing the appropriate tasks. The Town will honor the commitment to continue plowing for winter season 2021-2022. If the road association is not in place by October 1, of 2022, the Town will serve notice of discontinuation on the plowing services as of November 1, 2022, for winter season 2022-2023. Note that we are attempting to get authority from the Legislature to extend the time to complete this process by another year, but at present these are our working deadlines. We will do our best to assist owners in forming these associations.

11. 11. What does a road association provide and/or do?

Road associations allow residents to have one voice in communication with the Town and vice versa.  They provide a centralized decision-making forum, open lines of communication among property owners/abutters on the road, legitimize the collection of members’ dues, set up an impartial means for managing association monies, and establish a legal authority.   This is the most effective and simple way for continued winter services to work.  Road associations will need to provide annual notice to the Town of their designated contact’s information.  A change of directors does not constitute registry action, just simply provide a copy of the Directors to the Town each year.  Individual properties are not required by the town to have a separate filing in the registry concerning the road association.    

12. 12. What is the responsibility of the residents in these road associations?

The responsibility of the residents/abutters is defined in the by-laws. The primary responsibility of property owners on the identified Town plowed private ways will be to maintain the roads to a basic minimum standard, as recommended by the Road Commissioner (Public Works Director and a designated Councilor) on an individual basis, as each road may have unique concerns.  The new Winter Maintenance of Designated Private Ways ordinance establishes this practice and will only apply to the identified Town plowed private ways. All roads will be driven yearly and then assessed on a three-year rotational basis. Identified improvements must be completed per the prescribed details within an adequate and noted timeframe.

13. 13. We have decided to form a road association. Is a non-profit approach best?

The Town will allow your group to choose the type of road association to form.   But from our knowledge of options, you should consider forming a standard statutory association, as it is lower cost, involves no annual filings, quick to form, and provides the necessary tools to organize owners and make assessments for maintenance and repairs.   Obtaining a legal opinion on your best options for a road association would be our recommendation.  The Town will work with any type of road association or home-owners’ association (HOA).

14. 14. What are the necessary steps to get organized if we do not have a road association?

The Town will send a letter to all property owners or abutters to the identified private ways alerting them to this issue and what steps should be taken to correct it.

The following step-by-step process is recommended:

1. Review all the information on the Town website concerning this topic. 
2. Contact your neighbors and identify a contact person or person(s) to be the team      leader.  The Town is willing to answer questions, and the quickest and easiest way is by having a point of contact for each non-road association group.  (The Town has over 50 roads that need to have an association, so having a singular point of contact is very important.) 
3. The Lead person(s) will need to notify the residents of a road association formation meeting.    Information regarding all abutters who use the private way, based on our records, are available on the Town’s website for your usage.  Simply decide to form a road association or not.    

If yes, The Town’s (designated staff person) will educate the point of contact on how to form the association. Each Private Way Road that desires to form an association to continue receiving plowing services will be provided a booklet (3 ring binder) on the various forms for a statutory road association.   This will be provided to the lead person.  If you want the assistance of a town representative or volunteer at a meeting, please call for availability. (207.894.7079)   Also on the Town website is a PDF of this booklet/3 ring binder.

4. Once your group has made the decision to have an association or not, then take the necessary steps to complete the decision.  

1)  If the decision is to not form an association (and thus waive ongoing town-provided plowing), simply summarize the meeting and forward that decision to the Town Manager’s Office. This letter should include at least 51% of the road abutter signatures.  (email: dpwhelp@windhammaine.us; or mail to Town of Windham, Private Ways Help, 8 School Road, Windham ME 04062)

2) If the decision is yes, we want to continue having the plowing service with conditions, then use the provided booklet to set up the road association and get organized.  

   E.  If you have decided to continue the service, you will need to:

1. Post the “Notice of Statutory Road Association”;
2. Vote to establish the road association;
3. Vote on by-laws; 
4. Vote on the directors; 
5. Notify the Town, and we will meet with the President of the road association or designee(s) to review the road, provide a plan of improvements over three years, establish contact information, and complete other foreseen needs over time for the road(s) to continue receiving snow plowing from the Town; and  
6. Register the road association with the State. 

15. 15. There is a lot of information to understand. Will the Town provide legal advice or guidance to move through this process swiftly?

The Town cannot provide legal assistance to the property owners/abutters of the non-road association town plowed private ways to form the association.   What the Town has arranged are two levels of guidance.   We can provide a checklist and forms for a person or group to get the Road Association organized and recorded.   We have limited staff and do have some volunteers to assist in this process.   Another alternative solution is an  arrangement we have made with our Town Attorney to assist a road group through the process of forming a statutory or nonprofit road association.   This cost will be paid by the property owners/abutters of that road association and not the Town.   Owners can of course also engage with an independent attorney to provide this service (a listing will be posted on our website).    Again, we do have volunteers willing to help.  Either way is acceptable, the self-help approach may seem complex but is quite simple.

16. 16. Who pays for this new road association and the ongoing cost of annual road maintenance?

The residents abutting the road will pay for costs associated with the Road Association and the annual road maintenance.    

17. 17. Do each of the identified town plowed private ways or areas have to form a Road Association or HOA?

Yes, this must be completed by October 1, 2022 by the property owners/abutters using this road.   If your road has an HOA or road association, you simply need to have the president contact the Town Manager’s office.   HOA’s are rare and are generally associated with newer subdivisions/condos.  If you do not have a road association, the property owners/abutters to the private way have a choice between forming a non-profit road association or forming a statutory road association under 23MRS 3101-3104.   If you choose not to form the road association as required by the new Winter Maintenance of Designated Private Ways ordinance, the Town will discontinue plowing the road.

18. 18. What if we as a road group cannot find a point of contact to organize the step-by-step process to set up the road association and subsequent obligations, or desire not to be involved?

The Maine legislature has provided the Town a specific path to formalize the continuation of the plowing services.   The Town must have a point of contact (i.e., Road Association) to have a continued communication going forward.   Once that time frame has expired the plowing services will be discontinued unless the Legislature has given the Town and owners more time to comply.  Owners should not count on this legislative extension and should do everything possible to comply by October 1, 2022.  

19. 19. What are the private way road tallies, associations or not?

Agreements (plowing/road associations maintenance)		Private way road Associations
16 roads	No	No Association or Information Outdated	48
81 roads (whole and partial)	Yes	Association Registered & In Good Standing	53

A	B		C	D	E
General Area		Miles of Town plowed private ways	# Signed Releases @ Origination	Current Homes & Owners/Abutters 2020	Number of Roads
Sebago Lake		10.22	486	575	30
Highland Lake		5.68	162	331	19
Forest Lake		3.23	48	167	9
Little Sebago Lake		15.78	562	694	43
TOTAL		34.91	1258	1767	101

20. 20. We live on a private road not on the listing provided by the Town's website. Can we have our road added to the winter maintenance list?

This cannot be done.   LD 1723 allows only those roads identified to be included in this process since the Town has serviced them for more than 20 years or by prior agreement. The objective for the Town is to not add any new or existing private roads to this listing.

21. 21. What if a road or area no longer wants to have the Town plow the road and does not want to comply with the basic road maintenance?

The Road Association or property owners of the road areas can simply notify the Town to discontinue winter snow removal services in a letter signed by 51% of property owners or the Road Association president.   The road (area) will then be taken off the winter maintenance listing permanently.   The road cannot be placed back on the winter maintenance list.

22. 22. Is there a listing of addresses on each private way road and a map?

Yes, our website has prepared lists which include owners of record as of August 2021 and a searchable database to our most current data on the property owners/abutters.  (The prepared lists are a “snapshot” and may change if any owner sells or splits a property.)  We also have a Road Classification Map available for your reference.

23. 23. What is the cost of road improvements that may be necessary?

This is difficult to project based on many factors.   That cost will vary based on profile of the road, ditching, limb maintenance, length or road, number of users, etc.   The Town Road Commissioner will recommend improvements over three years to the Association, on a continuous basis.   The improvements are the minimum standard for safe passage, we do not plan to have these Town Plowed private ways brought to the regular Town road standards since this simply would not work for these smaller roads.    

24. 24. Where can I find the Ordinance that was adopted regarding these Town Plowed private ways?

Please see the link on this webpage for the new Winter Maintenance of Designated Private Ways ordinance. Council will be discussing this ordinance going forward and considering amendments.

25. 25. Is my Private Road or Private Way defined in the Town Ordinances?

Yes, the private accesses (Private Ways) we are discussing were created prior October 22, 2009, around the lakes.   The other two definitions in our ordinance on being constructed after 2009.   

Definitions from our ordinance:

Private Road, Major.  A street constructed on or after October 22, 2009, that complies in width and construction with the specifications for private roads in Section 911.M.5, “Traffic Conditions and Streets,” and serves more than ten (10) lots. 

Private Road, Minor.  A street constructed on or after October 22, 2009, that complies in width and construction with the specifications for private roads in Section 911.M.5, “Traffic Conditions and Streets,” and serves ten (10) or fewer lots.   

Private Way.  A street that was constructed prior to October 22, 2009, that does not meet the specifications for private roads in Section 911.M.5 “Traffic Conditions and Streets,” and that has not been accepted by the Town of Windham.  Private ways do not include access ways typically referred to as tote roads or woods roads.

26. 26. How does LD 192 “An Act to Define the Responsibilities of Residential Property Owners for the Maintenance of and Repair of Private Roads” affect the Windham?

This legislation was introduced separately from Windham’s LD 1723 and applies to any town.  It is basically a way for the group of property owners/abutters (four or less) on any road to complete maintenance on a private road or way and assess those cost equally to all.   While this legislation provides a way to collect assessments on small private roads, it does not resolve our challenges concerning liability, ownership, point of contact, etc. and therefore does not avoid the need for a road association.

27. 27. Is there a check off list or summary description of items the Town will be reviewing for basic maintenance?

Yes, there will be a check list that the Town will use in the rotation review of each road. The Public Works Director, Town Engineer and one Councilor will be the review team. Maintenance includes, but is not limited to, snowplowing, snow removal, sanding and ice control: grading, “crown” of road and adding gravel and surface material; installing, cleaning and replacing culverts, creating and maintaining ditches, drains, catch basins and other storm water management infrastructure including runoff; creating and maintaining sight distances on curves, intersections, straightaways; and cutting brush, trees and vegetation; moving obstacles to safe plowing standards, all in the right of ways as defined by each private way. The objective is to have a safe passable roadway addressing basic road maintenance issues for winter plowing and seasonal travel.

28. 28. Will the Street sign change from a private way sign to a public sign?

No, the road sign remains the same.

29. Summary

We (the Council and Manager) understand that it is not common for a municipality to be involved in plowing private roads to the extent that Windham has for decades. We desire to address this issue with a balanced solution. Our objective is to bring the Town of Windham into alignment with the law without ceasing to provide a service which provides safe access to these identified properties and helps protect our many endangered watersheds. After considerable research and discussion, the Town does not see any other possible solution. Not addressing this situation places the community at risk on several levels.    We look forward to working cooperatively with owners to put the necessary legal framework in place to continue this practice.