ROADS; MUNICIPALITIES;

HIGHWAYS;

Connecticut laws/regulations;

You asked the following questions about towns and private roads:

1. Do any towns maintain private roads?

2. Can towns create special taxing districts to pay for improving or maintaining these roads?

3. Does the law require developers to post bonds towns can call to complete roads and other site work in a subdivision?

4. How can property owners who abut private roads complete, upgrade, or maintain them?

We address each question separately below.

DO ANY TOWNS MAINTAIN PRIVATE ROADS?

Land use planners and town engineers in five towns report that none upgrade or maintain private roads that were constructed within the last 40 to 50 years. (We surveyed a town you recommended and another recommended by a land use planner we contacted regarding your questions. We contacted three other towns, but are awaiting their return calls. We will revise this memo if any of these maintain private roads. )

Canton does not maintain private roads. Nor does it maintain public roads in a new subdivision until it is completed.

During the 1960s, Farmington accepted as public roads several private roads that were built as part of a large, private residential project. (As discussed below, statutory and common law provide a way for towns to accept private roads as public roads. ) But it has not accepted any private roads since then. In fact, the town will not approve proposed private roads unless the owners agree to upgrade and maintain them under a deed or as part of a homeowners association. The town clearly marks these road as private on subdivision maps to alert new homebuyers that it is not responsible for their upkeep.

Glastonbury provides limited maintenance to some private roads that existed before 1945. Its code identifies these roads and their distances. The town does not upgrade or maintain private roads built after 1945.

Wallingford does not maintain private roads and technically bans the construction of new ones. The ban does not include roads in a condominium, which the town classifies as driveways.

Waterford does not upgrade or maintain private roads, but it plows snow on designated “unaccepted streets” and picks up garbage for property owners that abut them. The town provides these services only because it started doing so many years ago; it does not provide these services to newer private roads.

CAN TOWNS CREATE SPECIAL TAXING DISTRICTS TO UPGRADE OR MAINTAIN PRIVATE ROADS?

Towns cannot create a special taxing district to cover the costs of upgrading or maintaining private roads. Towns must uniformly assess and tax all property; they cannot impose a higher rate on some residents to pay for a service that mostly benefits them.

Nor can towns impose a special assessment on residents abutting a private road to cover road improvement and maintenance costs. (The opposite is true with respect to sewerage systems, where a town’s water pollution control authority can levy a “benefit assessment” on properties that are “especially benefited” by the system (CGS § 7-249)).

As discussed below, towns can impose a special assessment on people buying lots in a new subdivision to construct roads and make other site improvements they required when they approved a subdivision. But most towns require developers to perform this work and guarantee its completion by posting a bond or other security.

DOES THE LAW REQUIRE DEVELOPERS TO POST BONDS TOWNS CAN CALL TO COMPLETE ROADS AND OTHER SITE WORK IN A SUBDIVISION?

The law leaves it for each town to decide whether to require developers to post bonds or other security to insure that roads, sidewalks, and other site work in a subdivision are completed according to the town’s standards. A town can guarantee completion by:

1. requiring the developer to complete the work before approving the subdivision,

2. allowing the developer to file his plan under the condition that he either completes the work or posts a bond guaranteeing its completion within five years,

3. requiring the developer to post a bond or other security before approving the subdivision, or

4. doing the work itself and assessing the new owners for the cost (CGS § 8-25).

Towns giving subdivisions conditional approval run the risk that the developer will sell lots without completing the work or posting the bond. But the law does not require them to complete the work. Still, the developer may have a hard time selling lots if the roads are incomplete. “An inspection in the field, a title search of the land records, inspections of the filed map, and a trip to the planning commission office by an attorney will protect any prudent buyer” (Robert A. Fuller, Land Use Law and Practice, 2^nd ed, 1999, p. 399).

Most towns require developers to post bonds. But, “while the statute only authorizes a surety bond, in practice many municipalities use other procedures such as a pledge of a savings account or an irrevocable letter of credit. Usually the town and the applicant [developer] concur as to the form of the security so a challenge to it is not likely” (Fuller, p. 398).

The law does not require towns to call the bond when a developer fails to complete the work, and their ability to do so may depend on the specific terms and conditions of the bond. But the town may still be liable for completing the work if the people buying lots in the subdivision can convince the court that they did so because (1) the town required the developer to post a bond and (2) the town-approved subdivision map showed that it would be served by fully designed and paved roads.

Towns rarely impose a benefit assessment, “since it requires an ordinance to implement it, and makes the town build the roads and collect the assessment” (Fuller p. 399).

HOW CAN PROPERTY OWNERS WHO ABUT PRIVATE ROADS INSURE THAT THEY ARE COMPLETED, UPGRADED, OR MAINTAINED?

Homeowners abutting private roads can arrange to have them completed, upgraded, or maintained by:

1. asking the town’s legislative body to accept the road as a public highway (CGS § 13a-48),

2. allowing the public to use the road and the town to maintain it, and

3. paying for the work themselves by forming a private homeowners association or a special taxing district.

The first option, “expressed dedication and formal acceptance,” involves a statutory procedure. The second option, “implied dedication and acceptance,” may require a court decision construing if a road’s owners dedicated the road for public use and the public or the town accepted it for that purpose. Attachment 1 is an OLR report discussing the first two options (84-R-0965).

Under the third option, the homeowners pay for the roadwork themselves. Those that own the road as part of a condominium association can pay for the roadwork by increasing the association fees or levying a special assessment. Those that do not belong to an existing condominium association can form a nonprofit organization or a special taxing district specifically to improve or maintain their roads. The latter is a single purpose government that levies its own property taxes to pay for the service it provides. The homeowners can create the district under a statutory procedure described in OLR 93-R-0975 (Attachment 2).

JR: eh