The Road Blog Part 4: Posting and Protecting a Public Road
This blog is the fourth in a municipal law series on all things roads. Legal issues involving roads are fact specific and require an analysis of the facts and circumstances of your situation. This blog addresses the issue of posting and maintaining public roads.
Municipal roadways are typically maintained and repaired through funds received from the local tax base. However, when a public road suffers damage through excessive hauling by a private entity, municipalities have processes available to them to hold the private entity responsible and to protect the tax funds paid to them by their residents.
The first step toward protecting your public roadways is to make sure those roadways are posted with a weight restriction. To accomplish this, a Traffic and Engineering Study is required. Your municipality’s engineer can work with PennDot to determine when and where a weight restriction may be appropriate. The study will result in a determination as to whether the roadway is in need of a restriction and, if so, at what weight threshold.
A municipality should also include its solicitor in this process to ensure it is following the appropriate steps to effectuate a legally enforceable posting. Posting a roadway requires enacting an ordinance and providing notice to the public, haulers, and law enforcement. Please keep in mind that the legal and engineering needs for posting bridges may be different from those for posting a roadway. 67 Pa. Code § 189.1.
Once a public road has been successfully posted, over-limit haulers will need to bond the road, obtain permits, and enter into an Excess Maintenance Agreement (“EMA”) with the municipality, where appropriate. 67 Pa. Code § 189.4. The purpose of an EMA is primarily two-fold: (1) it allows the parties to determine who is responsible for performing maintenance and repairs to the subject roadway and (2) it provides for the hauler to secure the roadway to ensure the maintenance and repairs are funded. PennDOT has created a standard EMA, but a municipality should consult with its solicitor to review any EMA or security agreements before entering into the same.