View Daily Data Tracking History
View Bill Text
View Statement of Purpose / Fiscal Impact
H0250.........................................by TRANSPORTATION AND DEFENSE RIGHTS-OF-WAY - Amends existing law to further define "improved highway" and "public right-of-way"; to clarify use of an official highway system map; to provide for designation and opening of highways and public rights-of-way by counties and highway districts; to clarify the abandonment and vacation of highways, public rights-of-way and federal land rights-of-way by counties and highway districts; to provide for filing of record acknowledgments and an index; to provide for reports; to clarify the condition for removal of obstructions to highways and public rights-of-way; to increase the fine for unlawful encroachment; and to revise the conditions and procedures for lawful barricades or gating of highways and public rights-of-way. 02/15 House intro - 1st rdg - to printing 02/16 Rpt prt - to Transp
H0250|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature First Regular Session - 1999IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 250 BY TRANSPORTATION AND DEFENSE COMMITTEE 1 AN ACT 2 RELATING TO HIGHWAYS; AMENDING SECTION 40-110, IDAHO CODE, TO FURTHER DEFINE 3 IMPROVED HIGHWAY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 4 40-117 IDAHO CODE, TO FURTHER DEFINE PUBLIC RIGHT-OF-WAY AND TO MAKE TECH- 5 NICAL CORRECTIONS; AMENDING SECTION 40-202, IDAHO CODE, TO CLARIFY USE OF 6 AN OFFICIAL HIGHWAY SYSTEM MAP AND TO PROVIDE FOR DESIGNATION AND OPENING 7 OF HIGHWAYS AND PUBLIC RIGHTS-OF-WAY BY COUNTIES AND HIGHWAY DISTRICTS; 8 AMENDING SECTION 40-203, IDAHO CODE, TO CLARIFY THE ABANDONMENT AND VACA- 9 TION OF HIGHWAYS, PUBLIC RIGHTS-OF-WAY AND FEDERAL LAND RIGHTS-OF-WAY BY 10 COUNTIES AND HIGHWAY DISTRICTS; AMENDING SECTION 40-203A, IDAHO CODE, TO 11 CLARIFY THE PROCEDURE FOR THE VALIDATION OF HIGHWAYS AND PUBLIC RIGHTS-OF- 12 WAY BY COUNTIES AND HIGHWAY DISTRICTS; AMENDING SECTION 40-204A, IDAHO 13 CODE, TO PROVIDE FOR VALIDATION OF FEDERAL LANDS RIGHTS-OF-WAY AS HIGHWAYS 14 OR PUBLIC RIGHTS-OF-WAY BY COUNTIES AND HIGHWAY DISTRICTS, TO PROVIDE FOR 15 FILING OF RECORD ACKNOWLEDGEMENTS AND AN INDEX AND TO MAKE TECHNICAL COR- 16 RECTIONS; AMENDING SECTION 40-610, IDAHO CODE, TO PROVIDE FOR A REPORT ON 17 THE FIRST OF OCTOBER; AMENDING SECTION 40-1316, IDAHO CODE, TO PROVIDE FOR 18 A REPORT OF CONDITION OF HIGHWAYS ON OR BEFORE THE FIRST DAY OF NOVEMBER 19 BY HIGHWAY DISTRICTS; AMENDING SECTION 40-2319, IDAHO CODE, TO CLARIFY THE 20 CONDITION FOR REMOVAL OF OBSTRUCTIONS TO HIGHWAYS AND PUBLIC RIGHTS-OF-WAY 21 AND TO INCREASE THE FINE FOR UNLAWFUL ENCROACHMENT; AND AMENDING SECTION 22 40-2320, IDAHO CODE, TO REVISE THE CONDITIONS AND PROCEDURES FOR LAWFUL 23 BARRICADES OR GATING OF HIGHWAYS AND PUBLIC RIGHTS-OF-WAY BY COUNTIES AND 24 HIGHWAY DISTRICTS; DECLARING AN EMERGENCY AND PROVIDING EFFECTIVE DATES. 25 Be It Enacted by the Legislature of the State of Idaho: 26 SECTION 1. That Section 40-110, Idaho Code, be, and the same is hereby 27 amended to read as follows: 28 40-110. DEFINITIONS -- I. 29 (1) "Improved highway" means a graded and drained earth traveled way or 30 better, to include one (1) graded and graveled or with paved sur- 31 face, and a graded and drained earth highway means a traveled way of natural 32 earth, aligned and graded to permit reasonably convenient use by motor vehi- 33 cles, and drained by a longitudinal and transverse system, natural or artifi- 34 cial, sufficient to prevent serious impairment of the highway by surface 35 water. For the purpose of certification, if city corporate boundaries 36 follow the centerline of an approved improved roadway, one-half (1/2) the 37 mileage for each roadway surface along the length of said city boundary shall 38 be included in county or highway district certification. If county or highway 39 district boundaries follow the centerline of an approved improved roadway, 40 mileage will be determined by agreement of the entities or, if there is no 41 agreement, then one-half (1/2) shall be attributed to each entity. Highways 42 laid out and marked to include four (4) or more travel lanes shall be consid- 43 ered as two (2) roadways for the purposes of certification. 2 1 (2) "Individual" means a person who is not a member of a family. 2 (3) "Industrial activities." (See "Unzoned commercial or industrial 3 areas," section 40-122, Idaho Code) 4 (4) "Industrial areas, unzoned." (See "Unzoned commercial or industrial 5 areas," section 40-122, Idaho Code) 6 (5) "Information center" means any area or site established and main- 7 tained at a safety rest area on an interstate or primary highway by or under 8 the supervision or control of the department, where panels for the display of 9 advertising and informational signs may be erected and maintained. 10 (6) "Interchange area" means the commencing or ending at the beginning of 11 pavement widening at the exit or entrance to the main traveled way of an 12 interstate, primary freeway, or turnpike project. 13 (7) "Interstate system" or "interstate highway" means any portion of the 14 national system of interstate and defense highways located within the state, 15 as officially designated or as may be hereafter so designated, by the Idaho 16 transportation board, and approved by the secretary of transportation, pursu- 17 ant to the provisions of title 23, U.S. Code, "Highways". " 18 19 SECTION 2. That Section 40-117, Idaho Code, be, and the same is hereby 20 amended to read as follows: 21 40-117. DEFINITIONS -- P. 22 (1) "Person" includes every natural person, firm, fiduciary, copartner- 23 ship, association, corporation, trustee, receiver or assignee for the benefit 24 of creditors. 25 (2) "Place." (See "Maintain," section 40-114, Idaho Code) 26 (3) "Primary system" or "primary highway" means any portion of the high- 27 ways of the state, as officially designated, or as may hereafter be so desig- 28 nated, by the Idaho transportation board, and approved by the secretary of 29 transportation, pursuant to the provisions of title 23, U.S. Code, 30 "Highways". " 31 (4) "Public highway agency" means the state transportation department, 32 any city, county, highway district or other political subdivision of the state 33 with jurisdiction over public highway systems and public rights - 34 of - way. 35 (5) "Public highways" mean s all highways open to public use 36 in the state, whether maintained by the state or by any county, highway dis- 37 trict, city, or other political subdivision. (Also see "Highways," section 38 40-109, Idaho Code) 39 (6) "Public right - of - way" means a right - 40 of - way open to the public and under the exclusive 41 jurisdiction of a public highway agency, where the public highway 42 agency has no obligation to construct or maintain said public 43 right - of - way or post traffic signs for 44 vehicular traffic on said public right-of-way, provided however, a pub- 45 lic right-of-way may be barricaded or gated as provided in section 40-2320, 46 Idaho Code. A public right-of-way is a right-of-way which was originally 47 intended for development as a highway and was accepted on behalf of the public 48 by deed of purchase, fee simple title, authorized easement, eminent domain, by 49 plat, prescriptive use, by expense of the public, declassification of a high- 50 way, but shall not include federal land rights-of-way that resulted from the 51 creation of a facility for the transmission of water. Public highway agencies 52 may expend funds for the maintenance of a public right-of-way. However, public 53 rights-of-way shall not be considered as improved highways for public highway 3 1 agencies to be eligible to receive funds from the highway distribution account 2 or restricted highway fund . 3 SECTION 3. That Section 40-202, Idaho Code, be, and the same is hereby 4 amended to read as follows: 5 40-202. DESIGNATION OF HIGHWAYS AND PUBLIC RIGHTS-OF-WAY. (1) The initial 6 selection of the county highway system and highway district system may be 7 accomplished in the following manner: 8 (a) The board of county or highway district commissioners shall cause a 9 map to be prepared showing the general location of each high- 10 way and public right-of-way in their jurisdiction, and the commissioners 11 shall cause notice to be given of intention to adopt the map as the offi- 12 cial map of that system, and shall specify the time and place at which all 13 interested persons may be heard. 14 (b) After the hearing, the commissioners shall adopt the map, with any 15 changes or revisions considered by them to be advisable in the public 16 interest, as the official map of the respective highway system. 17 (2) If a county or highway district acquires an interest in real property 18 for highway or public right-of-way purposes, the respective commissioners 19 shall: 20 (a) Cause any order or resolution enacted, and deed or other document 21 establishing an interest in the property for their highway system purposes 22 to be recorded in the county records; or 23 (b) Cause the official map of the county or highway district system to be 24 amended as affected by the acceptance of the highway or public right-of- 25 way. 26 Provided, however, a county with highway jurisdiction or highway district may 27 hold title to an interest in real property for public right-of-way purposes 28 without incurring an obligation to construct or maintain a highway within the 29 right-of-way until the county or highway district determines that the necessi- 30 ties of public travel justify opening a highway within the right-of-way. The 31 lack of an opening shall not constitute an abandonment, and mere use by the 32 public shall not constitute an opening of the public right-of-way. 33 (3) Highways laid out, recorded and opened as described in subsection (2) 34 of this section, by order of a board of commissioners, and all highways used 35 for a period of five (5) years, provided they shall have been worked and kept 36 up at the expense of the public, or located and recorded by order of a board 37 of commissioners, are highways. If a highway created in accordance with the 38 provisions of this subsection isnot designated on the official map of39the respective highway system or isnot opened as described in subsec- 40 tion (2) of this section, there shall be no duty to maintain that highway, nor 41 shall there be any liability for any injury or damage for failure to maintain 42 it or any highway signs, until the highway is designated as a part of the 43 county or highway district systemby inclusion on the official map as a44highwayand opened to public travel as a highway. 45 (4) When a public right-of-way is created in accordance with the provi- 46 sions of subsection (2) of this section, or section 40-203 or 40-203A, Idaho 47 Code, there shall be no duty to maintain that public right-of-way, nor shall 48 there be any liability for any injury or damage for failure to maintain it or 49 any highway signs. 50 (5) Nothing in this section shall limit the power of any board of commis- 51 sioners to subsequently include or exclude any highway or public right-of-way 52 from the county or highway district system. 53 (6) By July 1, 2000, and every five (5) years thereafter, the board of 4 1 county or highway district commissioners shall have published in map form and 2 made readily available a map showing the general 3 location of all public rights-of-way under its jurisdiction. Any board of 4 county or highway district commissioners may be granted an extension of time 5 with approval of the legislature by adoption of a concurrent resolution. 6 SECTION 4. That Section 40-203, Idaho Code, be, and the same is hereby 7 amended to read as follows: 8 40-203. ABANDONMENT AND VACATION OF COUNTY AND HIGHWAY DISTRICT SYSTEM 9 HIGHWAYS OR PUBLIC RIGHTS-OF-WAY. (1) A board of county or highway district 10 commissioners, whichever shall have jurisdiction of the highway system, shall 11 use the following procedure to abandon and vacate any highway or public right- 12 of-way in the county or highway district system including those which furnish 13 public access to state and federal public lands and waters: 14 (a) The commissioners may by resolution declare its intention to abandon 15 and vacate any highway or public right-of-way considered no longer to be 16 in the public interest. 17 (b) Any resident, or property holder, within a county or highway district 18 system including the state of Idaho, any of its subdivisions, or any 19 agency of the federal government may petition the respective commissioners 20 for abandonment and vacation of any highway or public right-of-way within 21 their highway system. The petitioner shall pay a reasonable fee as deter- 22 mined by the commissioners to cover the cost of the proceedings. 23 (c) The commissioners shall establish a hearing date or dates on the pro- 24 posed abandonment and vacation. 25 (d) The commissioners shall prepare a public notice stating their inten- 26 tion to hold a public hearing to consider the proposed abandonment and 27 vacation of a highway or public right-of-way which shall be made available 28 to the public not later than thirty (30) days prior to any hearing and 29 mailed to any person requesting a copy not more than three (3) working 30 days after any such request. 31 (e) At least thirty (30) days prior to any hearing scheduled by the com- 32 missioner to consider abandonment and vacation of any highway or public 33 right-of-way, the commissioners shall mail notice by United States mail to 34 known owners and operators of an underground facility, as 35 defined in section 55-2202, Idaho Code, that lies within the highway or 36 public right-of-way. 37 (f) At least thirty (30) days prior to any hearing scheduled by the com- 38 missioners to consider abandonment and vacation of any highway or public 39 right-of-way, the commissioners shall mail notice to owners of 40 record of land abutting the portion of the highway or public right- 41 of-way proposed to be abandoned and vacated at their addresses as shown on 42 the county assessor's tax rolls and shall publish notice of the hearing at 43 least two (2) times if in a weekly newspaper or three (3) times if in a 44 daily newspaper, the last notice to be published at least five (5) days 45 and not more than twenty-one (21) days before the hearing. 46 (g) At the hearing, the commissioners shall accept all information relat- 47 ing to the proceedings. Any person, including the state of Idaho or any 48 of its subdivisions, or any agency of the federal government, may appear 49 and give testimony for or against abandonment. 50 (h) After completion of the proceedings and consideration of all related 51 information, the commissioners shall decide whether the abandonment and 52 vacation of the highway or public right-of-way is in the public interest 53 of the applicable highway jurisdiction . The decision whether 5 1 or not to abandon and vacate the highway or public right-of-way shall be 2 written and shall be supported by findings of fact and conclusions of law. 3 (i) If the commissioners determine that a highway or public right-of-way 4 parcel to be abandoned and vacated in accordance with the provisions of 5 this section has a fair market value of twenty-five hundred dollars 6 ($2,500) or more, a charge may be imposed upon the acquiring entity, not 7 in excess of the fair market value of the parcel, as a condition of the 8 abandonment and vacation; provided, however, no such charge shall be 9 imposed on the landowner who originally dedicated such parcel to the pub- 10 lic for use as a highway or public right-of-way , and further provid- 11 ing that if the highway or public right-of-way was originally a federal 12 land right-of-way, said highway or public right-of-way shall revert to a 13 federal land right-of-way . 14 (j) The commissioners shall cause any order or resolution to be recorded 15 in the county records and the official map of the highway system to be 16 amended as affected by the abandonment and vacation. 17 (k) From any such decision, a resident or property holder within the 18 county or highway district system, including the state of Idaho or any of 19 its subdivisions or any agency of the federal government, may appeal to 20 the district court of the county in which the highway or public right-of- 21 way is located pursuant to section 40-208, Idaho Code. 22 (2) No highway or public right-of-way or parts thereof shall be abandoned 23 and vacated so as to leave any real property adjoining the highway or public 24 right-of-way without access to an established highway or public right-of-way. 25 (3) In the event of abandonment and vacation, rights-of-way or easements 26 may be reserved for the continued use of existing sewer, gas, water, or simi- 27 lar pipelines and appurtenances, or other underground facilities as defined in 28 section 55-2202, Idaho Code, for ditches or canals and appurtenances, and for 29 electric, telephone and similar lines and appurtenances. 30 (4) A highway abandoned and vacated under the provisions of this section 31 may be reclassified as a public right-of-way. 32 (5) Until abandonment is authorized by the commissioners, public use of 33 the highway or public right-of-way may not be restricted or impeded by 34 encroachment or installation of any obstruction restricting public use, or by 35 the installation of signs or notices that might tend to restrict or prohibit 36 public use. Any person violating the provisions of this subsection shall be 37 guilty of a misdemeanor. 38 (6) When a county or highway district desires the abandonment or vacation 39 of any highway, public street or public right-of-way which was accepted as 40 part of a platted subdivision said abandonment or vacation shall be accom- 41 plished pursuant to the provisions of chapter 13, title 50, Idaho Code. 42 SECTION 5. That Section 40-203A, Idaho Code, be, and the same is hereby 43 amended to read as follows: 44 40-203A. VALIDATION OF COUNTY OR HIGHWAY DISTRICT SYSTEM HIGHWAY OR PUB- 45 LIC RIGHT-OF-WAY. (1) Any resident or property holder within a county or high- 46 way district system, including the state of Idaho or any of its subdivisions, 47 or any agency of the federal government, may petition the board of county or 48 highway district commissioners, whichever shall have jurisdiction of the high- 49 way system, to initiate public proceedings to validate a highway or public 50 right-of-way, including those which furnish public access to state and federal 51 public lands and waters, provided that the petitioner shall pay a reasonable 52 fee as determined by the commissioners to cover the cost of the proceedings, 53 or the commissioners may initiate validation proceedings on their own resolu- 6 1 tion, if any of the following conditions exist: 2 (a) If, through omission or defect, doubt exists as to the legal estab- 3 lishment or evidence of establishment of a highway or public right-of-way; 4 (b) If the location of the highway or public right-of-way cannot be accu- 5 rately determined due to numerous alterations of the highway or public 6 right-of-way, a defective survey of the highway, public right-of-way or 7 adjacent property, or loss or destruction of the original survey of the 8 highways or public rights-of-way; or 9 (c) If the highway or public right-of-way as traveled and used does not 10 generally conform to the location of a highway or public 11 right-of-way described on the official highway system map or 12 in the public records. 13 (2) If proceedings for validation of a highway or public right-of-way are 14 initiated, the commissioners shall follow the procedure set forth in section 15 40-203, Idaho Code, and shall: 16 (a)Cause the highway or public right-of-way to be surveyed;17(b)Cause a report to be prepared, includingthe18 consideration of a survey and any other information required 19 by theboardcommissioners ; 20 (b) If the commissioners determine it necessary, cause the highway 21 or public right-of-way to be surveyed; 22 (c) Establish a hearing date on the proceedings for validation; 23 (d) Cause notice of the proceedings to be provided in the same manner as 24 for abandonment and vacation proceedings; and 25 (e) At the hearing, the commissioners shall consider all information 26 relating to the proceedings and shall accept testimony from persons having 27 an interest in the proposed validation. 28 (3) Upon completion of the proceedings, the commissioners shall determine 29 whether validation of the highway or public right-of-way is in the public 30 interest and shall enter an order validating the highway or public right-of- 31 way as public or declaring it not to be public. 32 (4) From any such decision, any resident or property holder within a 33 county or highway district system, including the state of Idaho or any of its 34 subdivisions, or any agency of the federal government, may appeal to the dis- 35 trict court of the county in which the highway or public right-of-way is 36 located pursuant to section 40-208, Idaho Code. 37 (5) When a board of commissioners validates a highway or public right-of- 38 way, it shall cause the order validating the highway or public right-of- 39 way, and if surveyed, the survey to be recorded in the county records 40 and shall amend the official highway system map of the 41 respective county or highway district .system.4243 (6) The commissioners shall proceed to determine and provide just compen- 44 sation for the removal of any structure that, prior to creation of the highway 45 or public right-of-way, encroached upon a highway or public right-of-way that 46 is the subject of a validation proceeding, or if such is not practical, the 47 commissioners may acquire property to alter the highway or public right-of-way 48 being validated. 49 (7) This section does not apply to the validation of any highway, public 50 street or public right-of-way which is to be accepted as part of a platted 51 subdivision pursuant to chapter 13, title 50, Idaho Code. 52 SECTION 6. That Section 40-204A, Idaho Code, be, and the same is hereby 53 amended to read as follows: 7 1 40-204A. FEDERAL LAND RIGHTS - OF - WAY. (1) The 2 state recognizes that the act of construction and first use constitute the 3 acceptance of the grant given to the public for federal land rights - 4 of - way, and that once acceptance of the grant has been 5 established, the grant shall be for the perpetual term granted by the congress 6 of the United States. 7 (2) The only method for the abandonment of these rights - 8 of - way shall be that of eminent domain proceedings in which 9 the taking of the public's right to access shall be justly compensated. Nei- 10 ther the mere passage of time nor the frequency of use shall be considered a 11 justification for considering theserights of wayto have been 12 abandoned. 13 (3) All of the said rights - of - way shall be 14 shown by some form of documentation to have existed prior to the withdrawal of 15 the federal grant in 1976 or to predate the removal of land through which they 16 transit from the public domain for other public purposes. Documentation17shallmay take the form ofat leasta map, 18and anaffidavit ,. Ss 19 urveys, booksandor other historic 20 information .may also be included.21 (4) These rights - of - way shall not require main- 22 tenance for the passage of vehicular traffic, nor shall any liability be 23 incurred for injury or damage through a failure to maintain the access or to 24 maintain any highway sign. These rights - of - way shall 25 be traveled at the risk of the user and may be maintained by the public 26 through usage by the public. 27 (5) Any member of the public, the state of Idaho and any of its political 28 subdivisions, and any agency of the federal government may choose to seek val- 29 idation of its rights under law to use granted rights - of - 30 way either through a process set forth by the state of Idaho, through 31 processes set forth by any federal agency or by proclamation of user rights 32 granted under the provisions of the original act, Revised Statute 2477. 33These rights of way shall not be required to possess centerline sur-34veys typical of publicly maintained roads, but shall be surveyed prior to35being accepted into the maintained public highway system.Persons 36 seeking to have these federal land rights-of-way, including those which fur- 37 nish public access to state and federal public lands and waters, validated as 38 a highway or public right-of-way as part of a county or highway official high- 39 way system shall follow the procedure outlined in section 40-203A, Idaho Code. 40 41 Neither the granting of the original right - of - 42 way nor any provision in this or any other state act shall be construed 43 as a relinquishment of either federal ownership or management of the surface 44 estate of the property over which the right - of - way 45 passes. 46 (6) Persons seeking acknowledgement of federal land rights - 47 of - way shall file with the county recorder the request for 48 acknowledgement and for any supporting documentation. The county recorder 49 shallplace the acknowledgement on the official county road system map50record acknowledgements, including supporting documentation, and 51 maintain an appropriate index of same . 52 SECTION 7. That Section 40-610, Idaho Code, be, and the same is hereby 53 amended to read as follows: 8 1 40-610. REPORT OF CONDITION OF HIGHWAYS --FILING2 COUNTY . (1) On or before the first day of November in each 3 year, the commissioners shall make a report of the condition of the work, con- 4 struction, maintenance and repair of all the highways within the county, 5 on the first day of October, accompanied by a map or maps of them, 6 together with any other facts necessary for establishing generally the situa- 7 tion and condition of highways within the county. 8 (2) The report shall be made in duplicate, one (1) copy to 9 be filed in the office of the board and one (1) with the clerk of the commis- 10 sioners. 11 SECTION 8. That Section 40-1316, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 40-1316.ANNUALREPORT OF CONDITION OF HIGHWAYS -- 14 HIGHWAY DISTRICT. (1) On or before the first day ofJanuary15November in each year, the highway district shall make a 16 report of the condition of the work, construction, maintenance and repair of 17 all the highways within the district on the first day of October, accompanied 18 by a map of the highways, together with other facts necessary for setting 19 forth generally the situation and condition of the highways within the dis- 20 trict. 21 (2) Reports shall be made in triplicate. One (1) report shall be filed in 22 the office of the highway district, one (1) in the office of the board, and 23 one (1) with the clerk of the commissioners. 24 SECTION 9. That Section 40-2319, Idaho Code, be, and the same is hereby 25 amended to read as follows: 26 40-2319. ENCROACHMENTS -- REMOVAL -- NOTICE -- PENALTY FOR FAILURE TO 27 REMOVE -- REMOVAL BY DIRECTOR OF HIGHWAYS -- ABATEMENT. (1) If any highway 28laid out or erectedor public rights-of-way, under the 29 jurisdiction of a county or highway district, is encroached upon by 30 fences, buildings, or otherwise, the director of highways of the appro- 31 priate county or highway district may, orally or in writing, require 32 the encroachment to be removed .from the highway.33 If the encroachment is of a nature as to effectually obstruct and pre- 34 vent the use of the highway or public right-of-way for vehicles, the director 35 of highways shall immediately have the encroachment removed. 36 (2) Notice shall be given to the occupant or owner of the land, or person 37 causing or owning the encroachment, or left at his place of residence if he 38 resides in thecountyhighway jurisdiction . If not, 39 it shall be posted on the encroachment, specifyingthe breadth of the40highway,the place and extent of the encroachment, and requiring him to 41 remove the encroachment within ten (10) days. 42 (3) If the encroachment is not removed, or commenced to be removed, prior 43 to the expiration of ten (10) days from the service or posting the notice, the 44 person who caused, owns or controls the encroachment shall forfeit seven 45 hundred fifty dollars ($ 7 50.00) for each day 46 the encroachment continues unmoved.If the encroachment is of a nature47as to effectually obstruct and prevent the use of the highway for vehicles,48the director of highways shall immediately remove the encroachment.49 (4) If the encroachment is denied, and the owner, occupant, or person 50 controlling the encroachment, refuses either to remove it or to permit its 51 removal, the director of highways shall commence in the proper court an action 9 1 to abate the encroachment as a nuisance. If the director of highways recovers 2 judgment, he may, in addition to having the encroachment abated, recover 3 seven hundred fifty dollars ($ 7 50.00) for 4 every day the nuisance remained after notice, as well as costs of the legal 5 action and removal . 6 (5) If the encroachment is not denied, but is not removedfor7within five (5) days after the notice is complete, the 8 director of highways may remove it at the expense of the owner, occupant, or 9 person controlling the encroachment, and recover his costs and expenses, as 10 well as the sum of seven hundred fifty dollars ($ 7 11 50.00) for each day the encroachment remained after notice 12 was complete. 13 SECTION 10. That Section 40-2320, Idaho Code, be, and the same is hereby 14 amended to read as follows: 15 40-2320. BARRICADES OR GATES --PENALTIES16 HIGHWAYS OR PUBLIC RIGHTS-OF-WAY . (1) No barricade or 17 gates shall be allowed on anypublichighway, except on18highways running through land subject to overflow to an extent as to remove19the fences. When allowed they shall be erected and maintained at the expense20of the owner or occupant at whose request or for whose benefit they were21erected. If the expense is not paid, the gate shall be removed as an obstruc-22tion.23(2) Any person who leaves a gate open, or who willfully and unnecessarily24rides over ground adjoining the highway on which the gate is erected, shall25forfeit treble damages to the injured partyor public right-of- 26 way, unless authorized by the appropriate county or highway district. 27 (2) A county or highway district may barricade highways or public rights- 28 of-way. The commissioners shall, by resolution, declare their intention to 29 seasonally barricade any highway or public right-of-way. The resolution shall 30 state the conditions of barricade, except in an emergency, or during construc- 31 tion or maintenance. 32 (3) Any resident, or property holder, within a county or highway district 33 system including the state of Idaho, any of its subdivisions, or any agency of 34 the federal government may petition the respective commissioners to seasonally 35 barricade any highway or public right-of-way within their highway system. 36 (4) The commissioners shall establish a hearing date or dates on the pro- 37 posed seasonal barricade. 38 (5) The commissioners shall prepare a public notice stating their inten- 39 tion to hold a public hearing to consider the proposed seasonal barricade of a 40 highway or public right-of-way which shall be made available to the public not 41 later than thirty (30) days prior to any hearing and mailed to any person 42 requesting a copy not more than three (3) working days after any such request. 43 (6) At least thirty (30) days prior to any hearing scheduled by the com- 44 missioner to consider seasonal barricade of any highway or public right-of- 45 way, the commissioners shall mail notice by United States mail to known owners 46 and operators of an underground facility, as defined in section 55-2202, Idaho 47 Code, that lies within the highway or public right-of-way. 48 (7) At least thirty (30) days prior to any hearing scheduled by the com- 49 missioners to consider seasonal barricade of any highway or public right-of- 50 way, the commissioners shall mail notice to owners of record of land abutting 51 the portion of the highway or public right-of-way proposed for seasonal barri- 52 cade at their addresses as shown on the county assessor's tax rolls and shall 53 publish notice of the hearing at least two (2) times, if in a weekly news- 10 1 paper, or three (3) times, if in a daily newspaper, the last notice to be pub- 2 lished at least five (5) days and not more than twenty-one (21) days before 3 the hearing. 4 (8) At the hearing, the commissioners shall accept all information relat- 5 ing to the proceedings. Any person, including the state of Idaho or any of its 6 subdivisions, or any agency of the federal government, may appear and give 7 testimony for or against seasonable barricade. 8 (9) After completion of the proceedings and consideration of all related 9 information, the commissioners shall decide whether the seasonal barricade of 10 the highway or public right-of-way is in the public interest of the applicable 11 highway jurisdiction. The decision whether or not to seasonally barricade the 12 highway or public right-of-way shall be written and shall be supported by 13 findings of fact and conclusions of law. 14 (10) From any such decision, a resident or property holder within the 15 county or highway district system, including the state of Idaho or any of its 16 subdivisions or any agency of the federal government, may appeal to the dis- 17 trict court of the county in which the highway or public right-of-way is 18 located pursuant to section 40-208, Idaho Code. 19 (11) If the commissioners determine that a highway or public right-of-way 20 be seasonally barricaded, they shall cause to be erected a sign identifying 21 the appropriate highway jurisdiction, and if necessary conditions of barri- 22 cade. 23 (12) No highway or public right-of-way or parts thereof shall, except in 24 an emergency, or during construction or maintenance, be barricaded so as to 25 leave any real property adjoining the highway or public right-of-way without 26 access to an established highway or public right-of-way. 27 (13) In the event of barricade, rights-of-way or easements may be reserved 28 for the continued use of existing sewer, gas, water, or similar pipelines and 29 appurtenances, or other underground facilities as defined in section 55-2202, 30 Idaho Code, for ditches or canals and appurtenances, and for electric, tele- 31 phone and similar lines and appurtenances. 32 (14) Until seasonal barricade is authorized by the commissioners, public 33 use of the highway or public right-of-way may not be restricted or impeded by 34 encroachment or installation of any barricade restricting public use, or by 35 the installation of signs or notices that might tend to restrict or prohibit 36 public use. Any person violating the provisions of this subsection shall be 37 guilty of a misdemeanor . 38 SECTION 11. An emergency existing therefor, which emergency is hereby 39 declared to exist, Sections 2, 3, 4, 5, 6, 9 and 10 of this act shall be in 40 full force and effect on and after its passage and approval; and Sections 1, 7 41 and 8 shall be in full force and effect on and after July 1, 1999.
Statement of Purpose
RS 09012
The purpose of this legislation is to implement
recommendations of the Report to the Senate
Transportation Committee and the House transportation
and Defense Committee, submitted by the Local Highway
Technical Assistance Council in response to Senate
Concurrent Resolution - 136, passed in 1998.
The legislation clarifies ambiguities in Idaho Code for
mapping highways and public rights-of-way by counties
and highway districts.
To result in a single submission date for counties and
highway districts to submit their report on the
conditions of highways. This will allow for timely use
of this information by the Local Highway Technical
Assistance Council to complete its annual report to the
Idaho Legislature
Addresses common highway operations related to gate
closures by providing for seasonal gating of highways
and public rights-of-way by counties and highway
districts through a process that includes public
notification and a hearing.
Simplifies the acknowledgement of federal land rights-of-way. Clarifies the method of incorporating federal
land rights-of-way into highway district or county
highway systems.
Fiscal Impact
There will be no impact on the General Fund, nor the
Highway Distribution Account or the Restricted Highway
Account.
Contact: Stuart O. Davis
Agency: Idaho Association of Highway Districts
Phone: 345-5176
Statement of Purpose/Fiscal Impact H 250