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H0496.........................................by TRANSPORTATION AND DEFENSE
HIGHWAYS - RIGHTS-OF-WAY - Amends existing law to provide for a
determination whether the validation of the proposed public highway or
proposed public right-of-way is in the public interest, whether the highway
or right-of-way under consideration has been created pursuant to state law,
whether public right of passage has been established pursuant to state law
and whether the highway or right-of-way may have been subsequently
abandoned pursuant to state law; to provide for an order validating the
highway or right-of-way as public or declaring the highway or right-of-way
not be public; and to revise the formula for the awarding of compensation.
02/03 House intro - 1st rdg - to printing
02/04 Rpt prt - to Transp
02/17 Rpt out - rec d/p - to 2nd rdg
02/18 2nd rdg - to 3rd rdg
02/22 3rd rdg - FAILED - 34-34-2
AYES -- Alltus, Black, Bruneel, Clark, Crow, Cuddy, Deal, Field(13),
Field(20), Gould, Hadley, Hansen(29), Jones, Judd, Kellogg, Kempton,
Kunz, Linford, McKague, Meyer, Montgomery, Mortensen, Pischner,
Pomeroy, Ridinger, Sali, Schaefer, Sellman, Smith, Smylie, Stone,
Tilman, Zimmermann, Mr Speaker
NAYS -- Barraclough, Barrett, Bell, Bieter, Boe, Callister, Campbell,
Chase, Cheirrett, Denney, Ellsworth, Gagner, Geddes, Hammond,
Hansen(23), Henbest, Hornbeck, Jaquet, Kendell, Lake, Mader, Marley,
Moss, Moyle, Pearce, Reynolds, Ringo, Robison, Shepherd, Stevenson,
Stoicheff, Trail(Miller), Wheeler, Wood
Absent and excused -- Loertscher, Taylor
Floor Sponsor - Kempton
Filed with Chief Clerk
H0496
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 496
BY TRANSPORTATION AND DEFENSE COMMITTEE
1 AN ACT
2 RELATING TO VALIDATION OF PUBLIC HIGHWAYS AND PUBLIC RIGHTS-OF-WAY; AMENDING
3 SECTION 40-117, IDAHO CODE, TO FURTHER DEFINE TERMS AND TO MAKE TECHNICAL
4 CORRECTIONS; AND AMENDING SECTION 40-203A, IDAHO CODE, TO PROVIDE FOR A
5 DETERMINATION WHETHER THE VALIDATION OF THE PROPOSED PUBLIC HIGHWAY OR
6 PROPOSED PUBLIC RIGHT-OF-WAY IS IN THE PUBLIC INTEREST, WHETHER THE HIGH-
7 WAY OR RIGHT-OF-WAY UNDER CONSIDERATION HAS BEEN CREATED PURSUANT TO STATE
8 LAW, WHETHER PUBLIC RIGHT OF PASSAGE HAS BEEN ESTABLISHED PURSUANT TO
9 STATE LAW, WHETHER THE HIGHWAY OR RIGHT-OF-WAY MAY HAVE BEEN SUBSEQUENTLY
10 ABANDONED PURSUANT TO STATE LAW, TO PROVIDE FOR AN ORDER VALIDATING THE
11 HIGHWAY OR RIGHT-OF-WAY AS PUBLIC OR DECLARING THE HIGHWAY OR RIGHT-OF-WAY
12 NOT BE PUBLIC AND TO REVISE THE FORMULA FOR THE AWARDING OF COMPENSATION
13 AND TO MAKE TECHNICAL CORRECTIONS.
14 Be It Enacted by the Legislature of the State of Idaho:
15 SECTION 1. That Section 40-117, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 40-117. DEFINITIONS -- P.
18 (1) "Person" includes every natural person, firm, fiduciary, copartner-
19 ship, association, corporation, trustee, receiver or assignee for the benefit
20 of creditors.
21 (2) "Place." (See "Maintain," section 40-114, Idaho Code)
22 (3) "Primary system" or "primary highway" means any portion of the high-
23 ways of the state, as officially designated, or as may hereafter be so desig-
24 nated, by the Idaho transportation board, and approved by the secretary of
25 transportation, pursuant to the provisions of title 23, U.S. Code,
26 "Highways.".
27 (4) "Public highway agency" means the state transportation department,
28 any city, county, highway district or other political subdivision of the state
29 with jurisdiction over public highway systems and public rights-of-way.
30 (5) "Public highway(s)" means all highway(s) open to public use in the
31 state where public right of passage has been created in conformity with state
32 law, whether maintained by the state or by any county, highway district, city,
33 or other political subdivision. (Also see "Highways," section 40-109, Idaho
34 Code)
35 (6) "Public right(s)-of-way" means a right-of-way open to the where pub-
36 lic right of passage has been created in conformity with state law, and where
37 said right-of-way is under the jurisdiction of a public highway agency, where
38 the public highway agency which has no obligation to construct or maintain
39 said right-of-way for vehicular traffic unless otherwise statutorily directed.
40
41 SECTION 2. That Section 40-203A, Idaho Code, be, and the same is hereby
42 amended to read as follows:
2
1 40-203A. VALIDATION OF COUNTY OR HIGHWAY DISTRICT SYSTEM HIGHWAY OR PUB-
2 LIC RIGHT-OF-WAY. (1) Any resident or property holder within a county or high-
3 way district system, including the state of Idaho or any of its subdivisions,
4 or any agency of the federal government, may petition the board of county or
5 highway district commissioners, whichever shall have jurisdiction of the
6 highway system, to initiate public proceedings to validate a highway or public
7 right-of-way, including those which furnish public access to state and federal
8 public lands and waters, provided that the petitioner shall pay a reasonable
9 fee as determined by the commissioners to cover the cost of the proceedings,
10 or the commissioners may initiate validation proceedings on their own resolu-
11 tion, if any of the following conditions exist:
12 (a) If, through omission or defect, doubt exists as to the legal estab-
13 lishment or evidence of establishment of a highway or public right-of-way;
14 (b) If the location of the highway or public right-of-way cannot be accu-
15 rately determined due to numerous alterations of the highway or public
16 right-of-way, a defective survey of the highway, public right-of-way or
17 adjacent property, or loss or destruction of the original survey of the
18 highways or public rights-of-way; or
19 (c) If the highway or public right-of-way as traveled and used does not
20 conform to the location of a highway or public right-of-way described on
21 the official map or in the public records.
22 (2) If proceedings for validation of a highway or public right-of-way are
23 initiated, the commissioners shall follow the procedure set forth in section
24 40-203, Idaho Code, and shall:
25 (a) Cause the highway or public right-of-way to be surveyed;
26 (b) Cause a report to be prepared, including the survey and any other
27 information required by the board;
28 (c) Establish a hearing date on the proceedings for validation;
29 (d) Cause notice of the proceedings to be provided in the same manner as
30 for abandonment and vacation proceedings; and
31 (e) At the hearing, the commissioners shall consider all information
32 relating to the proceedings and shall accept testimony from persons having
33 an interest in the proposed validation.
34 (3) Upon completion of the proceedings, the commissioners shall determine
35 whether validation of the proposed public highway or proposed public right-of-
36 way is in the public interest, and shall enter an order validating the highway
37 or public right-of-way as public or declaring it not to be public whether the
38 highway or right-of-way under consideration has been created pursuant to state
39 law, whether public right of passage has been established pursuant to state
40 law, whether the highway or right-of-way may have been subsequently abandoned
41 pursuant to state law, and shall enter an order validating the highway or
42 right-of-way as public or declaring the highway or right-of-way not be public.
43 (4) From any such decision, any resident or property holder within a
44 county or highway district system, including the state of Idaho or any of its
45 subdivisions, or any agency of the federal government, may appeal to the dis-
46 trict court of the county in which the highway or public right-of-way is
47 located pursuant to section 40-208, Idaho Code.
48 (5) When a board of commissioners validates a highway or public right-of-
49 way, it shall cause the survey to be recorded in the county records and shall
50 amend the official map of the county or highway district system.
51 (6) The commissioners shall proceed to determine and provide just compen-
52 sation for:
53 (a) Tthe removal of any structure that, prior to creation of the highway
54 or public right-of-way validation of the public highway or public right-
55 of-way, encroached upon a the highway or public right-of-way that is the
3
1 subject of a validation, proceeding, or if such is not practical, the com-
2 missioners may acquire property to alter the validated public highway or
3 public right-of-way. being validated.
4 (b) Eminent domain actions taken to secure public right of passage over
5 any highway or right-of-way that is determined "not to be public" under
6 subsection (3) of this section.
7 (7) This section does not apply to the validation of any highway, public
8 street or public right-of-way which is to be accepted as part of a platted
9 subdivision pursuant to chapter 13, title 50, Idaho Code.
STATEMENT OF PURPOSE
RS09785
This proposed legislation redefines "public highway(s)" and "public right (s) of way" in terms of
"public right of passage (that)has been created in conformity with state law" and
further establishes that commissioners having jurisdiction in a public highway or public right of
way validation shall determine and provide just compensation for eminent domain actions taken
to secure public right of passage over a highway or right of way that is determined by the
commissioners "not to be public".
FISCAL NOTE
Fiscal impact to a governmental entity exercising validation powers will vary depending on
appraised value of the public highway or public right of way validated. In the event of
disagreement between the governmental entity and affected property owner, just compensation
will be determined by a court, jury or referee in accordance with section 7-711, Idaho Code.
CONTACT: Representative Jim Kempton
208/332-1146
STATEMENT OF PURPOSE/ FISCAL NOTE H 496