COMCOR 24B.00.02. Easement and Maintenance Requirements for Receipt and Use of State Highway User Revenues for Private Maintenance Roads

Chapter 24B, Section 1 of the Montgomery County Code, 1994, as amended defines a Private Maintenance Road and authorizes the following procedures for classification of such roads upon application by a homeowners association. Chapter 24B, Section 8 of the Montgomery County Code, 1994 as amended authorizes the following guidelines for receipt and use of State Highway User Revenues for maintenance by homeowners' associations.

Homeowners' Association means a body that has the authority to enforce a declaration under the state homeowners' association law.

Association Roadway means those paved surfaces, except areas designated for parking, which (1) provide vehicular access to more than 4 dwelling units; and (2) are maintained by a homeowners' association.

Private Maintenance Road means those paved surfaces, exclusive of areas designated and used for parking maintained by a homeowner association, which meet the requirements outlined in Chapter 24B, Section 1.

County means Montgomery County, Maryland.

Department means the Montgomery County Department of Public Works and Transportation.

Director means the Director of the Montgomery County Department of Public Works and Transportation or designee.

Existing County Reimbursement Program means the existing Reimbursement for Association Roadways Program authorized in Sections 24B-2 of the Montgomery County Code, implemented under Executive Regulation No. 18-88, and funded solely by the County.

A request for classification of homeowners' association roadway as a private maintenance road may be made in writing by a homeowners' association to the Department of Public Works and Transportation. This application must be submitted by September 1 for each year and must include the following information for each road:

- Name of road.

- Length and width of road in linear feet.

- Pavement width of the road.

- Boundaries of the road.

- Date of completion of construction of the road.

- Record Plat.

- Area map indicating the connection of the road to the overall transportation network.

- A scale map of the roadways of the association.

- The annual maintenance expenditures of the association on the road for the preceding 5 years or so since the completion of construction.

- The actual or proposed annual budget of the association for the succeeding fiscal year and the maintenance program for road for the next year.

- Easement as outlined in 24B.00.02.04 of this regulation.

- Draft Maintenance Agreement as outlined in Section 5 of this regulation.

In accordance with Montgomery County Code Section 24B-8(a)(1), each homeowners' association must provide to the Department with the application, an easement for the general free public use of each private maintenance road, which must include a metes and bounds description of the easement certified by a registered land surveyor or other description of the road sufficient to identify the dimensions of the easement. The Department will review the submitted record plat to assess whether the plat provides sufficient information to identify the easement. If the Department finds that the plat provides insufficient information, the Department may request a metes and bounds survey.

The easement must include:

- A grant of an easement to the County for the general free public use of the private maintenance road, and be accompanied by a description of the easement sufficient to identify its dimensions.

- An acknowledgement that granting the easement does not relieve the association of the obligation to maintain the Private Maintenance Road or to provide any other services, such as snow removal, which the association is required to provide by any association document or law.

- A certification that the road is owned and maintained by the homeowners' association.

- A certification that the roads are open to the public at all times and free of obstructions of any kind, for example speed bumps or gates.

- A certification that the road has a right-of-way at least thirty feet wide, not including any portion of the right-of-way used for parking, and two travel lanes.

- An acknowledgement that the easement may be terminated upon default by the homeowners' association, misuse of funds other non-compliance with the maintenance agreement, or the convenience of the county, and provision that upon termination the easement automatically reverts to the homeowners' association.

The easement must be approved by the Department and the Office of the County Attorney.

A. Standards

In accordance with Montgomery County Code Section 24B-8(a)(2), each homeowner's association must provide to the Department with the application a signed agreement that the Homeowners' association will build and maintain the private maintenance road at a level of service satisfactory to the County. "Satisfactory Level of Service" is defined as the same level of service provided by the County on County-maintained roadways similar to those of the association as determined by the Department. Maintenance tasks include but are not limited to the following items:

- Repair of pavement surface

- Replacement of Pavement surface

- Replacement of defective paving and cyclic resurfacing of the same

- Repaving of pavement surface

- Sealing of pavement surface

- Repair and/or replacement of Curb and Gutter

- Repair and/or replacement of Storm Drainage

- Repair and/or replacement of Sidewalks

- Painting/Striping

- Snow Removal

- Ice Treatment

- Street Cleaning

In accordance with Montgomery County Code Section 24B-(8)(a), (b), and (e), the maintenance agreement must:

- Obligate the association to maintain the roadways at a level of service satisfactory to the County.

- Obligate the association to using the monies received solely for maintenance of the private maintenance road and in compliance with 24B.00.02.08 of these regulations.

- Acknowledge that granting the easement does not relieve the association of the obligation to maintain the Private Maintenance Road or to provide any other services, such as snow removal, which the association is required to provide by any association document or law.

- Indemnify the County against all claims arising from the use or condition of the Private Maintenance Road.

- Certify that the homeowners association has obtained and will continually maintain insurance or other surety, in an amount acceptable to the County, covering claims arising from the use or condition of the private maintenance road, and acknowledge that the County may withdraw funds allocated under this program if the insurance coverage lapses.

The maintenance agreement must by approved by the Department and the Office of the County Attorney.

Any easement or agreement signed must be recorded in the County land records. The homeowners' association must pay all costs of preparing and recording any easement, agreement or other document required.

The County may allocate to a Homeowners' Association for maintenance of a Private Maintenance Road an amount that does not exceed the net amount, less any inspection fee or any other County expense, of highway user revenues received by the County as a result of the inclusion of that private maintenance road in the State Highway Administration mileage inventory. Montgomery County currently funds the reimbursement for Association Roadways authorized in Section 24B-2 of the Montgomery County Code to partially reimburse Homeowners' Associations for maintenance of Homeowners' Associations for maintenance of Homeowners' Associations' roads as defined in Section 24B-1. This Existing County Reimbursement Program is funded solely by the County and the amount of the reimbursement is subject to fiscal conditions. No Homeowners' Association may receive funds for any road concurrently from both the Existing County Reimbursement Program and the Private Maintenance Road Program. A Homeowners' Association may receive funds from the Existing County Reimbursement Program and the Private Maintenance Road Program for different Association Roadways. Some of the Association Roadways which are eligible for the Existing County Reimbursement Program will meet the requirements for the Private Maintenance Roads Classification and receive reimbursement with State Highway User Revenue, while others will not. Roadways eligible for the existing County Reimbursement Program but not for the Private Maintenance Roads funds will continue to receive funding through the Existing County Reimbursement Program.

All funds advanced pursuant to this program are subject to the following conditions, which must also be included or referenced in the Maintenance Agreement:

A. All funds must be used only for maintenance of the private maintenance road.

B. Each association must have a financial officer that is bonded under an individual policy of insurance or under a group policy of insurance. Each association will provide a corporate bond to the County to be approved by the Director, Department of Finance, in a penal sum to be fixed by the Director of Finance to ensure the faithful discharge of the duties of the financial officer (treasurer). A bond indicating the name and address of the financial officer must be submitted before the association will receive any funds from the County.

C. Upon termination of an easement, any funds advanced through this program which remain unspent must be returned to the County or used only for maintenance of the Private Maintenance Road.

If the County finds that an easement granted under this Section is not in the public interest, or that a homeowners' association has not complied with the terms of an easement or other agreement under this Section, the County may, in its sole discretion, withhold or withdraw maintenance funds or reject and terminate the easement by an Executive Order and record documentation of the termintion in the County land records.

This regulation applies to reimbursements requested for Fiscal Year 1999 and beyond.